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33  WEST  MAIN  STREET 

WEBSTER,  N.Y.  14580 

(716)  872-4503 


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CIHM/ICMH 

Microfiche 

Series. 


CIHIVI/ICMH 
Collection  de 
microfiches. 


Canadian  Institute  for  Historical  Microreproductions  /  institut  Canadian  de  microreproductions  historiques 


Technical  and  Bibliographic  Notas/Notaa  tachniquas  at  bibliographiquas 


Tha  Instltuta  haa  attamptad  to  obtain  tha  baat 
original  copy  availabia  for  filming.  Faaturaa  of  thia 
copy  which  may  ba  bibliogra(?hically  uniqua. 
which  may  altar  any  of  tha  intagaa  In  tha 
reproduction,  or  which  may  significantly  changa 
tha  usual  mathod  of  filming,  ara  chackad  balow. 


□    Coloured  covers/ 
Couverture  da  couleur 


[~~|    Coverv  damaged/ 


D 


n 


Couverture  endommagAa 


Covers  restored  and/or  taminatad/ 
Couverture  restaur^  at/ou  palliculAe 


I      I    Cover  title  missing/ 


La  titre  de  couverture  manque 


□    Colourad  maps/ 
Cartas  gtegraphiques  en  couleur 


D 


Coloured  ink  (i.e.  other  than  blue  or  black)/ 
Encre  de  couleur  (i.e.  aula  qua  blaua  ou  noire) 


Coloured  plates  and/or  iliuatrationa/ 
Planchaa  at/ou  iliuatrationa  an  couleur 


Bound  with  other  material/ 
ReliA  avec  d'autraa  documantu 

Tight  binding  may  cauaa  shadows  or  distortion 
along  interior  margin/ 

Lareliura  serrie  peut  causer  de  I'ombre  ou  de  la 
diatorsion  lo  long  da  la  marge  intirieura 

Blank  leaves  added  during  restoration  may 
appear  within  the  text.  Whenever  possible,  these 
have  been  omitted  from  filming/ 
II  se  peut  que  certaines  pcgea  blanc!ias  ajouttes 
lors  d'una  restauration  apparaiaaant  dana  la  taxte. 
maia,  lorsque  cela  itait  possible,  ces  pagaa  n'ont 
pas  Ml  film^aa. 

Additional  comments:/ 
Commentaires  suppiimentairas; 


L'Inatitut  a  microfilm*  la  meilleur  exemplaire 
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da  cat  exemplaire  qui  sont  peut-Atre  uniques  du 
point  de  vue  bibliographique,  qui  peuvent  modifier 
une  image  reproduita,  ou  qui  peuvent  exiger  une 
modification  dans  la  m^thoda  normala  de  filmaga 
sont  indiquis  ci-dessous. 


□    Coloured  pages/ 
Pagaa  de  couleur 

□    Pagaa  damaged/ 
Pages  endommagias 

p~l    Pages  restored  and/or  laminated/ 


Thee 
toth« 


n 


Pages  restaurias  at/ou  palliculAes 

Pagaa  discoloured,  stained  or  foxe< 
Pages  dicoiories,  tachaties  ou  piquiias 

Pagaa  detached/ 
Pages  dAtachies 

Showthrough/ 
Transparer.ee 

Quality  of  prir 

Qualiti  inigala  de  I'impression 

Includes  supplementary  matarii 
Comprend  du  matiriai  supplimentaira 

Only  edition  available/ 
Seule  Edition  disponible 


r~7\    Pagaa  discoloured,  stained  or  foxed/ 

□Pagaa  detached/ 
Pages 

I    ^  Showthrough/ 

I      I  Quality  of  print  varies/ 

nn  Includes  supplementary  material/ 

r~n  Only  edition  available/ 


Thaii 
posall 
of  th« 
filmin 


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begin 
tha  la 
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other 
firat  I 
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math 


Pachas  wholly  or  partially  obscured  by  errata 
slips,  tissues,  etc..  have  been  refilmed  ro 
ensure  the  best  possible  image/ 
Les  pages  totalement  ou  partiallemert 
obscurcies  par  un  feuiilet  d'arrata.  una  pelure, 
etc.,  ont  6ti  fiimtes  i  nouveau  de  facon  ^ 
obtanir  la  meilleure  image  possible. 


This  item  is  filmed  at  the  reduction  ratio  checked  below/ 

Ce  document  est  film*  au  taux  de  rMuction  indiquA  ci-deaaoua. 

10X  14X  18X  22X 


26X 


30X 


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12X 


16X 


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24X 


28X 


32X 


ils 

lu 

difier 

ine 

age 


The  copy  fiimad  hare  hat  been  reproduced  thanks 
to  the  generosity  of: 

National  Library  of  Canada 


The  images  appearing  here  are  the  best  quality 
possible  considering  the  condition  and  legibility 
of  the  originei  copy  and  in  iceeping  with  the 
filming  contract  specifications. 


L'exemplaire  film6  f ut  reproduit  grice  A  la 
ginArosit*  de: 

BibiiothAque  nationaie  du  Canada 


Las  images  suivantes  ont  tt€  reproduites  avec  le 
plus  grand  soin.  compte  tenu  de  la  condition  at 
de  la  nettet*  de  l'exemplaire  fiimA,  et  en 
conformit6  avec  ies  conditions  du  contrat  de 
filmage. 


Original  copies  in  printed  paper  covers  are  filmed 
beginning  with  the  front  cover  and  ending  on 
the  last  page  with  a  printed  or  illustrated  impres- 
sion, or  the  bacl(  cover  when  appropriate.  All 
other  original  copies  are  filmed  beginning  on  the 
first  page  with  a  printed  or  illustrated  impres- 
sion, and  ending  on  the  last  page  with  a  printed 
or  illustrated  impression. 


Les  exemplaires  originaux  dont  la  couverture  en 
papier  est  imprimte  sont  filmAs  en  commen^ant 
par  le  premier  plat  et  en  terminant  soit  par  ia 
derniAre  page  qui  comporte  une  empreinte 
d'impression  ou  d'illustration,  soit  par  ie  second 
plat,  salon  ie  sas.  Tous  les  autres  exemplaires 
originaux  sont  fWmtm  en  commenpant  par  la 
premiere  page  qui  comporte  une  empreinte 
d'impression  ou  d'illustration  et  en  terminant  par 
la  dernlAre  page  qui  comporte  une  telle 
empreinte. 


The  last  recorded  frame  on  each  microfiche 
shall  contain  the  symbol  ^»>  (meaning  "CON- 
TINUED"), or  the  symbol  V  (meaning  "END"), 
whichever  applies. 


Un  dee  symboles  suivants  apparaTtra  sur  ia 
derniAre  image  de  cheque  microfiche,  selon  ie 
cas:  le  symbols  — »>  signifie  "A  SUiVRE",  ie 
symbols  ▼  signifie  "FIN". 


Maps,  plates,  cherts,  etc.,  m-^v  be  filmed  at 
different  reduction  ratios.  Those  too  large  to  be 
entirely  included  in  one  exposure  are  filmed 
beginning  in  the  upper  left  hand  corner,  left  to 
right  and  top  to  bottom,  as  many  frames  as 
required.  The  following  diagrams  illustrate  the 
method: 


Les  cartes,  planches,  tableaux,  etc.,  peuvent  Atre 
filmte  A  des  taux  d»^  r6du.:tion  diff6rents. 
Lorsque  le  document  est  trop  grand  pour  Atre 
reproduit  en  un  seul  cliche,  il  est  film*  A  partir 
de  Tangle  supAiieur  gauche,  de  gauche  A  droite, 
et  de  haut  en  bes,  en  prenant  le  nombre 
d'imeges  nAcessaire.  Les  diagrammes  suivants 
iilustrent  ia  mAthode. 


rata 


eiure, 


3 

32X 


1 

2 

3 

1 

2 

3 

4 

5 

6 

AN  ANSWER 


t.t 


TO  THE 


I         t 

I  .   ! 


HON.  E.  J.  PHELPS  PAPER 


ON   THK 


BERING  Sm  CONTROVERSY 


IN 


HARPERS'  MAGAZINE 


Price   as    Gents. 


1 


CO/  YRIGHT  SECURED 


SALEM,   MASS. 

JOHN  H.  CHOATE  &  CO.,  PRINTERS 


l?3fa#s^;s#»saB*SSJ 


1 1 


An  Answf.r  to  thk  Honor ablk  E.  J.  Phklps's   I'aj'kr  on  tiir  Bering 
Sea  Controvkrsy,  in  Harpers'  Magazine  for  April,  181U. 


All  opinion  on  this  question,  by  u  gentleman  of  the  landing  and  the  an- 
tecedents of  Professor  Piielps,  is  one  whicii,  as  a  matter  of  course,  will  secure 
the  respectful  attention  of  every  one  wishing  to  inform  himself  on  the  real 
merits  of  the  case.  His  ripe  scholarship  in  the  science  of  law,  and  the  ex- 
ceptional opportunities  for  acquiring  special  and  exact  information,  which 
his  position  as  one  of  the  participators  in  the  official  discussions  gave  him,  in- 
vest his  utterances  on  the  subject,  in  the  eyes  of  the  great  mass  of  his  coun- 
trymen, almost  with  the  authority  of  a  decision  by  a  judge,  after  a  fair  trit.1. 
Moreover,  the  Professor  is  a  Democrat,  and  the  mere  fact  of  the  endorsement 
by  this  Democrat,  of  the  position  assumed  in  the  matter  by  our  present  Re- 
publican administration,  will  be  taken  by  a  great  many  of  both  political  par- 
ties as  the  strongest  prima  facie  evidence  of  the  impregnability  of  that 
position. 

The  Professor's  paper  is,  therefore,  one  which  the  opponents  of  Mr.  Blaine's 
policy  in  the  matter  cannot  afford  to  pass  over  in  silence;  because,  such  si- 
lence would  be  construed,  by  the  public,  as  a  confession  of  the  impossibility 
to  give  any  valid  and  conclusive  answer. 

Discussions  of  this  kind  in  the'press  are,  in  some  respects,  not  unlike  trials 
in  court  before  a  jury,  but  with  this  great  difference  that,  in  press  discussions, 
there  is  no  presiding  judge  to  enforce  upon  the  respective  pleaders  that  inva- 
riable rule  of  the  courts  which  insists  upon  the  presentation  of  the  truth,  the 
whole  truth,  and  nothing  but  the  truth.  In  the  absence  of  such  a  superior 
power,  a  writer  who  addresses  a  jury  composed  of  readers,  is  at  liberty  to  de- 
cide for  himself  whether  he  will  act  as  an  ex-parte  advocate,  who  not  only  re- 
peats unhesitatingly  his  client's  misstatements,  but  superadds  misstatements 
of  his  own,  and  then  wrenches  the  law  to  fit  his  case,  or,  whether  he  will  act 
as  an  impartial  judge,  who.  after  having  himself  scrutinized  the  evidence, 
sums  it  up  truthfully,  and  states  the  law  justly. 

A  comparison  of  the  evidence  as  presented  by  Mr.  Phelps  with  that  presen- 
ted by  the  ofiicial  documents,  and  an  analysis  of  his  argument  will  show  which 
of  these  two  roles  he  has  chosen  to  take  in  his  article. 

The  objection  to  his  argument  is  twofold.  In  part,  it  is  perfectly  logical  and 
consistent,  but  based  upon  premises  wrong  in  fact  and  in  law;  in  part  it  is  made 
up  of  illogical  and  inconsistent  deductions  from  correct  premises,  and,  con- 
sequently no  part  of  his  argument  will  hold  water,  any  more  than  that  charm- 
ing boat  of  the  French  poet : 

"le  plus  beau  des  canots, 

il  n'avait  qu'un  d^faut, 

c'^tait  d'aller  au  fond  de  I'eau." 

To  begin  with,  there  is  a  grave  difference  between  our  author's  narrative, 
and  the  official  documents,  as  to  tie  sequence  of  events.* 


*Reference  to  authorities  will  be  by  pa^e,  i.  e. : 
p.  767,  II.  M.— Harpers'  Magazine,  April,  91. 


p.  '20,  S.  E.  1).  100.  .=500.28.— Senate  Executive  Document  No.  IOC.  50th  Congress,  2(1  Session 
p.  .W II.  E.  D.  l.')0.  .'Jl  C.  IS.— IIou.se       "  "        "     450.  ."JOth        "  Ist  Session 

and  the  mention  of  the  luunber  of  a  page  alone,  will  always  refer  to  the  document  last 
cited.    All  itali<'.s  are  mine,  unless  specialized  as  "O.  I"— original  italics.  (l) 


u 


"Diirinn;  the  administration  of  President  Cleveland,  and  as  soon  as  these  drf- 
retentions  uerc  mtidr  ,\iiov,'n.  our  yovcrnnuiil  api>lic(i  to  tliatofGrf.il  Ilrilaiii" 
with  a  proposal  for  a  convention  to  rcgiilato  sealinfj  in  neriiij;  Sea.  (p.  7<i7  II. 
M.)  Secretary  HIaine  insists  repeatedly,  ami  especially  .'!()  June  IHHO,  that  the 
sealin;,'  complained  of  he,i,'an  only  in  ISSd,  (p.  S',),  11.  E,  I).  4r)().5l  C.  1  S.) 
Accordinjj  to  .S.  K.  D.  106.50  C.  2  S., 

pp.  20.30  &  4(1,  our  Hrst  seizures  of  IJritish  sealers  were  made,  1  &  2  Aug.  188<> 
"    2(;. 8(11^47      "      "  condemnations  of  them        "         "  4  Oct.      " 

"    84.  footnote  "      "  overtures  (or  a  convention  "         "  1  '  Aug.  1887. 

Consequently,  our  forcible  measures  preceded  our  diplomatic  measures  by 
more  than  a  whole  year.  If  any  diplomatic  steps  were  taken  before  1!)  Aug. 
'87,  by  our  government  for  a  friendly  and  peaceable  arrangement,  it  has  not 
seen  fit  to  publish  anything  about  them,  and  as  Mr.  Phelps  declares  that  he  is 
writing,  without  attempting  to  state  anything  not  already  laid  before  the  pub- 
lic, (p  7(i7  II.  M.),  I  shall  likewise  confine  myself  to  the  documents  ofilcially 
published. 

The  importance  of  this  order  of  sequence  becomes  evident  from  some  later 
remarks  of  Mr.  Phelps.  "The  applicntion  made  by  the  American  government 
to  Great  Britain  when  the  depredations  complained  of  bkgan,  for  a  conven- 
tion, by  agreement  ot  the  countries  interested,  under  which  the  capture  of 
the  seals  should  be  regulated,  -was  the  proper  course  to  he  taken.  Interna- 
tional courtesy  required  it  before  proceeding  to  any  abrupt  measures.'"  (p. 
77;}.  II.  M.) 

If  our  official  publications  can  be  relied  on,  "international  courtesy,"  as 
defined  by  Mr.  Phelps  himself,  so  far  from  haying  been  observed  by  us,  as  he 
implies,  has.  therefore,  been  grossly  violated  by  us.  It  was  "a  word  and  a 
blow,  and  the  blow  first."  We  began  to  seize  in  August  '8(i,  to  condemn  in 
the  October  following,  but  we  did  not  begin  to  move  for  a  convention  until 
fully  twelve  months  after  our  seizures.  No  complaint  was  made  and  no 
warning  was  given  by  us.  Indeed,  there  could  not  have  been,  for  the  whole 
tenor  of  Mr.  Bayard's  despatches  shows,  that  the  news  of  the  seizures  of  '8(i 
came  upon  him  with  all  the  unexpectedness  of  an  "untoward  event."  And  it 
was  the  same  with  the  seizures  of '87;  for  he  writes,  18  Aug.  '87(p  4!)  S.  E.  D. 
lOd.oO  C  2  S.),  that  he  knew  nothing  of  them,  until  he  received  the  informa- 
tion on  11  Aug.  '87  from  the  British  Minister,  and  also  that,  "having  no  rea- 
son to  anticipate  any  other  seizures " 

Perhaps,  Mr.  Phelps  thinks  that  a  mere  seizingof  a  few  small  vessels,  their 
confiscation,  and  the  condemnation  of  their  captains  and  mates  to  heavy  fines 
and  imprisonment,  are  not  "abrupt  measures,"  and  that  "abruptness"  would 
be  fairly  chargeable  only  if  we  had  incontinently  hanged,  drawn  and  quartered 
every  one  of  the  piratical  crews ! 

A  brief  recapitulation  of  events  will  show  that  our  failure  to  comply  with 
the  requirements  of  "international  courtesy,"  which  at  the  beginning  of  the 
embroglio  was  evidently  accidental,  so  far  as  Secretary  Bayard  was  concerned, 
had  apparently,  bei    nie  intentional  under  the  present  administration. 
2()  Jan'y.  '87.     The  Attorney  General  gives  telegraphic  orders  to  release  the 
seized  British  sealers  (p.  56). 
3  Feb'y.  '87.     Official  advice  of  this  to  the  British  Minister  (p.  12). 
19  Aug.  '87.     Overtures  for  a  convention  (p.  84.) 


!  soon  (If  these  def- 
t  of  Great  Britain" 
iijf  Sea.  (,p.  "''•'  H- 
uiu;  18110,  tiiat  the 
I).  4.50.51  C.  I  S.) 

le,  1  &  2  Aug.  188''' 
4  Oct.  " 
1  "Aug.  1887. 
matic  measures  by 
ken  before  11)  Aug. 
gement,  it  has  not 
,  declares  that  he  is 
laid  bL-fore  the  pub- 
locunients  orticially 

:nt  from  some  later 
lerican  government 
EGAN,  for  a  conven- 
nch  the  capture  of 
he  taken.  Interna- 
'ipt  measures.'''     (p. 

tional  courtesy,"  as 
Dserved  by  us,  as  he 
t  was  "a  word  and  a 

'8(),  to  condemn  in 
r  a  convention  until 
t  was  made  and  no 

been,  for  the  whole 
)f  the  seizures  of  'St» 
vard  event."  And  it 
ug. '87(p41»S.  E.D. 
eceived  the  informa- 
hat,  "having  no  rea- 

V  small  vessels,  their 
mates  to  heavy  fines 
'•abruptness"  would 
drawn  and  quartered 

lilure  to  comply  with 
;he  beginning  of  the 
lyard  was  concerned, 
dministration. 
orders  to  release  the 

ster  (p.  12). 


8 


\s 


CesKfttion  of  all    interference  during 'H8,  but   "very  clear"  if  unoHlcial, 
asKurance  from    Mr.  Ilayard,  that  "pending  negotiations"  there  would 
be  no  interference  with  British  sealej-s  (p.  2  iSi  <!  H.  E.  D.  450.51  CIS.) 
28  Feb'y  '81).    Abortive  attempt  of  the  Mouse  to  declare  Sect.  llt.'iO,  U.  S.  Rev. 
Statutes  applicable  to  all  the  waters  of  Bering  Sea  within  the  boundary 
lines  of  the  treaty  ceding  Alaska.      Complete   "back  down"  of   the 
Mouse,  at  the  instance  of  the  Senate,  resulting  in  the  explicit  and  sig- 
nificant statement  that  the   new  law  left  out  "the  words  thu.t  are  de- 
scriptive of  the  boundaries  of  Alaska."  , 
No  official  assertion, on  o'lr  part,  of  any  exclusive  right  to,  or  of  any  jurisdic- 
tion  over  ex-territorial  waters  in  Bering  Sea,  exclusive  or  concurrent,  as  to 
foreigners  there,  and  no  warning  that  we  intend  to  assume  either,  until  22 
Jan'y'  DO  in  Mr.  Blaine's  great  "bonos  mores"  despatch,  though  more  and  very 
peculiar  "abrupt  measures"  had  been  resorted  to  by  our  cruisers  from  July  '8t). 
The  nearest  approach  to  anything  of  tiie  kind  is  11)  Aug.  '87,  in  Mr.  Bayard's 
despatch,  initiating  steps  for  a  convention.     "Without  raising  any  questions 
as  to  the  exceptional  measures   which  the  peculiar  character  of  the  property 
in  question" — which  by  the  context  is  not  the  seals   but,  the  fur-seal  fisheries" 
— "might  justify  this  Government  in  taking,  and  wi  hout  reference  to  any  ex- 
ceptional marine  jurisdiction   that  might  properly  be  claimed  for  that  end,  it 
is  deemed  advisable — and  I  am  instructed  by  the  President  so  to  inform  you — 
to  attain  the  desired  ends  by  international  co-operation."     p.  84  S.  E.  D.  100. 
50  C.  2  S. 

To  what  Mr.  Phelps  is  pleased  to  call,  "the  ordinary  mind"  (p.  7(i7  H.  M.)  this 
passage  appears  like  a  very  distinct  official  pledge,  (coi . .  .yorating  the  un-otticial 
assurance,;  that  just  as  little  as  we  intended  to  raise  these  questions  by  argu- 
ment., did  we  intend  to  raise  them  by  acts  of  force.  And  the  diplomatists  seem 
to  have  put  the  same  construction  upon  this  and  upon  the  occurrences  related. 
For  there  is  no  indication  that  anything  out  of  the  common  may  be  impend- 
ing, until  24  Aug.  '81)  p.  2  II.  E.  D.  450.51  C.  1  S.  when  there  is  a  British  en- 
quiry as  to  rumors  of  searching  and  seizing,  and  a  request  for  stringent  counter 
instructions,  which  elicited  that  extraordinary  explosion  of  courtesy  from  Mr. 
Blaine  in  his  reply  of  same  date  "that  the  same  rumors,  probably  based  on 
truth.,  have  reached  the  Government  of  the  United  States,  but  that  up  to  this 
date  there  has  been  no  official  communication  received  on  the  subject." 

Of  course,  people's  ideas  of  courtesy,  whether  international  or  individual, 
difter.  In  Mr.  Phelp's  eyes  our  ofliicial  action  and  nonaction  may  be  quite  as 
much  in  strict  accordance  with  the  requirements  of  the  case,  as  was  undoubt- 
edly in  the  eyes  of  our  President,  his  late  refusal  to  receive  the  obligatory 
ceremonial  caP  upon  him  of  the  Canadian  representatives,  who  had  come  on 
public  business  by  official  appointment.  It  all  depends  upon  the  standard  of 
courtesy  which  one  applies.  The  popular  idea  has  always  been  that  this 
standard  is  even  a  higher,  a  more  exacting  one,  in  the  intercourse  of  diplo- 
matists, than  in  that  of  "ordinary  minds."  Measured  by  the  amenities  usual 
among  ordinary,  well-bred  people,  our  official  treatment  of,  and  our  responses 
vouchsafed  to.  Great  Britain  and  Canada  have  the  savor  of  that  evasiveness, 
which  Paddy  pleaded  in  excuse  to  the  charge  of  having  behaved  like  a  boor. 
"What  did  you  say,  Paddy.'"'  "Oh,  I  gave  an  evasive  answer,  I  merely  told 
the  fellow  to  go  to  ...  .   (Sheol). 


Corcerniny  the  negotiations  (or  a  convention  to  proscribe  a  'cIoho  time" 
Mr.  Phelps  says  (p.7<i7  II.  M.)  "This  proposal  was  not  met  on  the  pari  of  the 
British  ^ovcrnMient  bv  any  assertion  of  the  rii^lit  of  the  Canadians  to  destroy 
the  seal  in  the  manner  complained  of,  or  by  any  vindication  of  the  propriety 
of  that  biisineHS." 

Why  should  it  have  been  thus  met?  The  right  had  been  asserted  and  vin- 
dicated already  twice  before,  in  the  despatches  of  'M)  Oct.  'Xd  and  H  Jan'y  'H7 
(p.  H  iSi  10,  S.  E.  D.  IDd  ')()  C  '2  S.)  Hesides,  as  ve  have  just  seen,  in  our  in- 
itial proposition,  we  had  expressly  declined  to  argue  on  questions  of  right, 
and  Mr.  Phelps  himself  corroborated  this  in  his  despatch  of  12  Nov.  '«7  "  .  . 
.  .  .  .  ;  such  agreement  to  be  entirely  irrespective  of  any  questions  of  con- 
flicting jurisdiction  in  those  waters."     (p.  H7.) 

"But  it  is  to  be  borne  in  mind,"  says  Mr.  Phelps,  (p.  771  II.  M.)  "  in  this 
discussion  that  Greaf  Britain  has  nevrr yet,  in  all  the  correspondence  that 
has  taken  place, rt.wcrAv////e  rii^ht  of  the  Canadians  to  do  ivhat  they  have  been 
engaged  in.  The  question  is  not  one  of  abstract  theory.  It  is  whether  the 
Canadian  ships  have  an  indefeasible  right  to  do  precisely  ivhiit  they  have  done 
and  are  doing,  despite  the  necessary  consequences  that  must  follow." 

If  this  allegation  were  true,  the  puzzle  would  be  how  any  controversy  could 
have  arisen.  But  to  make  it  possible  for  Mr.  Phelps  to  put  forth  these  allega- 
tions, he  must  have  "dis-remenibered"  not  a  few  British  despatches,  in  which 
the  assertion  of  the  said  right  was  made;  not  only  in  the  negative  form  of 
protests  against  our  preventing  Canadians  from  sealing,  coupled  with  de- 
mands for  indemnificatiort,  but  also  in  the  most  expressly  and  broadly  atHrm- 
ative  form. 

In  the  two  despatches,  ,'!0  OlI.  '8(!,  and  !•  Jan'y  '87,  cited  above,  the  sealing 
done  is  characterized  as  "the /frtcc//// — peaceabh — and  lawful  occupation  of 
Canadian  citizens  on  the  high  si  'is." 

"Her  Majesty's  Government  would  deeply  regret  that  the  pursuit  of  fur- 
seals  on  the  high  seas  by  British  vessels  should  involve  even  the  slightest  in- 
jury to  the  people  of  the  United  States.  If  the  case  should  be  proved,  they 
will  be  ready  to  consider  what  measures  can  be  properly  taken,  for  the  rem- 
edy of  such  injury,  but  they  would  be  unable  on  that  ground  to  depart  from 
a  principle  on  zvhich  free  commerce  on  the  high  seas  depends."  (p.  (I-  HE. 
D.  450.  51  C.  1  S.  22  May  18!)0.)  "Her  Majesty's  Government  do  not  deny 
that  if  all  sealing  were  stopped  in  Bering  Sea,  except  on  the  islands  in  pos- 
session of  the  lessees  of  the  iJnited  States,  the  seal  may  increase  and  multiply 
at  an  even  more  extraordinary  rate  than  at  present,  and  the  seal  fishery  on  the 
island  may  become  a  monopoly  of  increasing  value,  but  they  cannot  admit 
that  this  is  a  sufficient  ground  to  Justify  the  United  States  in  forcibly  depriv- 
ing other  nations  of  any  share  in  this  industry  in  waters  which,  by  the  recog- 
nized law  of  nations,  are  now  free  to  all  the  world,''''     (p.  04. ) 

In  the  absence  of  an  agreement  the  British  Governitient  "are  unable  to  admit 
that  the  case  put  forward  on  behalf  of  the  United  States  affords  any  sufficient 
justification,  for  the  forcible  action  already  taken  by  them  against  peaceable 
subjects  of  Her  Majesty  engaged  in  lawful  operations  on  the  high  seas."  (p. 
04.)  "  The  rights  they" — the  British  Governme'it — "have  demanded  have  been 
those  of  free  navigation  and  fishery  Wn  waters  which,  previous  to  their  own 
acquisition  of  Alaska,  the  United  States  declared  to  be  free  and  open  to  all 
vessels",     (p.  <!4.) 


"Ci  V  .^rfll^'  •^  V-*^  ^^t*^«(>.  j; 


ibi-  a  '  clo^^;   time" 

on  tlie  pari  of  the 

iiadiaiiK  to  dehtroy 

)n  of  the  projiriety 

1  aKM-rtcd  and  vin- 
•Sd  and  '.I  Jan'v  'H7 
iist  seen,  in  our  in- 
(|uestions  of  ri^lit, 
)!■  12  Nov.  'S7  "  .  . 
iiuestions  of  con- 

1  H.  M  )  "  in  this 
nrrespondeiue  that 
hut  they  have  been 

It  is  ivhether   the 
ihat  they  have  done 
t  follow." 
^  controversy  could 

forth  these  allejja- 
;spatches,  in  which 
le  negative  form  of 
g,  coupled  with  de- 
and  broadly  atflnn- 

I  above,  the  sealing 
nvful  occufution  of 

t  the  pursuit  of  fur- 
k-en  the  slightest  in- 
uld  be  proved,  they 
taken,  for  the  ri'ni- 
)UND  /o  depart  from 
,ids."  (p.  02  n.  E. 
•nment  do  not  deny 
1  the  islands  in  pos- 
icrease  and  multiply 
ie  seal  fishery  on  the 
t  they  cannot  admit 
s  in  forcibly  depriv- 
ivhich,  by  the  recog- 
.  ()4.) 

'are  unable  to  admit 
affords  any  sufficient 
m  against  peaceable 
the  high  seas."  (p. 
demanded  have  been 
revious  to  their  own 
free  and  open  to  all 


Mr.  PhelpH  stateK  (p.  771  H.  M.)  tliat  "Mr.  Blaine  inquires  in  his  recent 
comnumitation,"  — then  it  must  be  in  his  depatch  of  17  Drc.  •'.»(»  —  "whetiier 
the  United  States  government  is  to  understand  that  her  Majesty's  govern- 
ment maintains  th<rt  the  right  con. ended  for  by  Canada  exists  This  is  a 
question  to  which  he  will  not  be  likely  to  obtain  a  direct  reply  " 

Well,  Mr.  Illaine  has  perpetrated  a  i^'ood  many  absurdities  in  his  part  of 
the  controversy,  but  it  is  not  he  who  has  been  guilty  of  this  particular  one. 
He  knew  that  Great  Hritian  had  persistently  asserted  that  the  right  conten- 
ded for  by  Canada  does  exist,  and  he  asked  no  such  question  as  Mr.  Phelps 
states,  Mr.  I'helps  iias  merely  misread  tiie  query  really  i)ut,  which  referred 
to  an  entirely  difVerent  matter,  namely,  the  British  St.  Ileietia  act.  After  cit- 
ing this  act  (p.  41 .  II.  E.  D.  144.  51  C.  -•  S.)  and  commenting  on  it  at  length, 
Mr.  Blaine  asks  (p. 42.)  "Is  this  (iovernment  to  understand  that  Lord  Salis- 
bury justifies  the  course  of  England?  Is  this  (Jovernment  to  understand  that 
Lord  Salisbury  maintains  the  right  of  England,  at  her  will  and  pleasure,  to 
obstruct  the  highway  of  commerce  in  mid-ocean,  and  that  she  will  at  the  same 
time  interpose  objections  to  the  United  States  exercising  her  jurisdiction  be- 
yond the  li-mile  limit,  in  a  remote  and  unused  sea,  for  the  sole  purpose  of 
preserving  the  most  valuable  fur  seal  fishery  in  the  world  from  remediless 
destruction."  It  is,  therefore,  an  inquiry  whether  England  denies  the  force 
oft!  ■",  particular"  tv^pioque,  argument! 

Concerning  the  negotiations  for  a  convention,  Mr.  Phelps  charges  Great 
Britain  with  procrastination,  and  evasion  of  the  real  issue,  and  the  substitu- 
tion for  this,  of  abstract  and  incidental  questions  and  of  colonial  contentions 
"without  committing  themselves" — i.  e.  the  British  ministers  —  "directly, 
upon  the  decisive  point  on  which  the  controversy  turns"  (p.  772  11.  M."^ 
Canada,  he  implies,  is  a  spoiled  child  which  has  outgrown  parental  authority, 
a  greedy  marplot,  who  robs  the  neighbor's  seal-roost,  and  Great  Britain, 
whilst  inclined  to  do  herself  what  is  proper,  is  a  blindly  indulgent  parent, 
afraid  and  impotent  herself  to  coerce  her  brat,  yet  protecting  it  from  the 
requisite  disciplining  by  the  neighbor!  All  this  is  no  doubt  Mr.  Phelps's  hon- 
est opinion,  but  it  is  nevertheless  the  direct  opposite  of  the  actuality. 

We  have  just  seen,  that  Great  Britain  has  met  the  exact  issue  most  squarely 
by  asserting  explicitly  Canada's  (and  everybody  else's)  right  to  seal  on  the 
high  seas,  even  if  it  should  injure  our  seal  produce.  There  is  not  the  slight- 
est evasion  of  the  real  issue  'ibut,  nevertheless,  she  is  willing  to  inquire  whether 
any  injury  is  being  done  to  the  United  States,  and  if  so,  to  adopt  remedial 
measures.  The  testimony  advanced  by  us  was,  that  such  sealing  as  the 
Canadians  practised  would  very  soon  exterminate  these  animals  in  Bering 
Sea  and  vicinity  (p.  8S-'.)";.  S.  E.  D.  10(i.  50  C.  2  S.)  On  the  strength  of  this 
testimony  L.ord  Salisbury  "assented"  to  a  close  time,  and  there  is  a  contention 
between  the  two  governtnents,  or  more  strictly  speaking, between  Mr.  Phelps, 
our  Minister  in  London  at  the  time,  and  Lord  Salisbury, as  to  the  exact  terms 
of  agreement  assented  to.  The  documents  published  leave  a  great  deal  of 
the  subject  in  the  dark,  and  it  must  be  remembered  that  Mr.  Bayard  stated 
officially  that;  "Other  correspondence,  of  a  confidential  character,  and  as 
yet  incomplete,  exists"  which  it  was  then — 12  Feb'y '8l»  and  has  ever  since 
been  —  deemed  inexpedient  to  publish  (p.  1)  The  part  of  the  correspondence 
published  shows  the  following:  iXNov.,  '87,  Mr.  Phelps  reports  that  he  has 


-1 


propoNi'il   t()   tfii"   nritihh    MiiiiKtrr    "tliiil    hy  nintHul  iijfrrement"  "a  code  oi 
ri'i{iilati(»nK  »koulti  he  adopted  for  tlu'  prcMorvatinn  ol"  the  ncftln  in  HcriiiK  Soa 

from  di'stiiuti«n  at  improper  tiiiu's  iiiul  hy  iiiipropir  iiieaiis " 

"lli«  Lordship  promptly  aciiiiiesced  in  this  />tof>ostil,"  aiul  a><l<H  Mr.l'iielp»  to 
submit  "a  skctc/i  of  a  system  of  rf^ulations."  \vliit:h  retpieKt  tin'  hitteriomimini- 
cntcH  to  Mr.  BayanI  (p.  87.)  Feb'y  7,  'HH  Mr.  Hayard,  replyiiiK  t<'  t''"**.  ''"''•' 
nitt  send  the  ttesinul  sketch,  hut  thinks  it  i'X|iedietit,  before  intikifnf  u  (iefi- 
«/'/<• /r<^/05/'//'<>//,  to  dcNcrihe  some  of  tlie  ((inihtions  of  seal  lil'o  ;  .  .  .  .  " 
and  for  tiiiH  purpose  lie  encloses  letters  lioin  two  experts.  MetiKrM.  Clarke  and 
Klliott.  neither  of  which  suhtnit  "reyulationn,"  (pp.  8i-!»il.)  The  only  defi- 
nite thinj;  which  Mr.  Hayard  states  is. that  extermination  can  only  he  ohv  iated 
by  the  prevention  of  the  killinj,'  north  of  .V)  °  N.  between  lfl'i°  \V.  and  170° 
E.  from  April  15  to  Nov.  1,  and  that  such  prevention  "within  a  marine  belt 
of  40  or  W  miles  from  the  islands  durint,'  that  |)criod  would  be  inetVect- 
ual  .  .  .  .  "  (p.  H'.».)  Feb'y  2."), 'MM,  Mr.  IMielps  reports,  "Lord  .Salisbury 
assents  to  your  proposition  to  r.<A//.'//.s-^,  Av  '««/«"/  ("■'««^''('""'«/"  .  .  .  . 
"  n  close  time  for  fur  seals"  between  April  l.'>  and  Nov.  I,  and  1(10°  Wand 
170  K  in  the  Berinj^  Sea.  'lie  will  also  join"  the  U.  S.  Government  "in  any 
preventive  measures  it  iiuiy  bv  thought  best  to  adopt  .  .  .  .  "  (p.  '.17.) 
March  2,  'MH,  Mr,  Hayard  writes,  "In  revjard  to  the  trial  of  otVenders  for  viola- 
tion of  the /r^/o.itf/ ;'<'.!,''//A///o«.v.  provision  miirht  be  made  for  such  trial  by 
handing  over  the  alleged  ollender  to  the  courts  of  his  own  country."  (p.  \>x.) 
Early  in  April,  '88  the  Russians  take  part  in  the  conferences  wisbing,  "to  in- 
clude in  the  proposed  arrangement  that  part  of  Hering  Sea  in  which  the 
Commander  Islands  are  situated,  and  also  the  sea  of  Okhotsk."  (p.  118) 
April  20,  '88,  our  chargd  d'affaires,  Mr.  White,  reports  a  conference  on  ,\pril 
1(),  "for  the  purpose  of  discussing"  "the  details  of  the  proposed  tonvenlional 
arrangement  ..."  Russia  wanted  her  rookeries  inchuled,  and  also  the 
imfortation  of  firearms^  munitions  and  liquors  prevented.  "Lord  Salisbury 
expressed  no  opinion  with  regard  to  the  latter  proposition,  but  suggested  : 
"that  besides  the  whole  of  Bering  Sea,  those  portions  of  the  Sea  of  Okhotsk 
and  of  the  Pacific  Ocean  north  of  "4  7'  N. ""should  be  included  in  the/n'/fl.viv/ 
arrangement.'"  He  also  intimated  that  a  close  season  up  to  Oct.  1  might  be 
long  enough.       Mr.  White,  himself  said     ...       I  should  be  obliged  to 

refer  to  you  the  proposals  ivhieh  had  Just  been  made " 

"Meanwhile,  the  Marquis  of  Salisbury  promised  t)  have  prepared  a  draught 
convention  for  submission  to  the  Russian  ambassador  and  to  myself."  (p.  100) 
May  1,  '88,  Mr.  Bayard  writes,  that  he  does  not  object  to  the  inclusion  of  the 
Sea  of  Okhotsk.  "Nor  is  it  thought  absolutely  necessary  to  insist  on  the  ex- 
tension of  the  close  season  till"  Nov.  1,  but  "  .  .  .  it  seems  advisable  to 
take  Oct.  15  instead  of  Oct.  1  as  the  end  of  the  close  season,  though  Nov.  1 
would  be  safer.  Thinks  it  advisable  to  regulate  the  subject  of  firearms  and 
liquors  separately,  (p.  101.)  20  June  '8i,  Mr.  While  reports, that  he  called 
May  lb  at  the  Foreign  Office  for  more  "discussing."  •'Unfortunately,  Lord 
Salisbury  had  just  received  a  communication  from  the  Canadian  government 
stating  that  a  memorandum  on  the  subject  would  shortly  be  forwarded  to 
London,  and  expressing  a  hope  that,  pending  the  arrival  of  that  document, 
no  further  steps  would  be  taken  in  the  matter  by  her  Majesty's  Government. 
Under  these  circumstances,  Lord  Salisbury  felt  bound  to  await  the  Canadian 


!•  «/«•«/"  "a  coilf  oi 
(.aU  in  llciin;;  Sou 

H 

a^ks  Mr.lMiclpH  to 

111-  latliTi'oininiini- 

IviiiK  '"  tliis,  iliii's 

II'    Hill  A' i Hi,''  It  (fe/i- 

life;     .     .     .     .    " 

Mchsi-N.  Clarke  ami 

. )     The  on  In  clefi- 

in  oiilv  be  obviateil 

ifiM^   W.  ami  1711° 

itiiin  a  inariiu'  lielt 

woulii  l)e  inefVect- 

s,  "Lonl  Salisbui7 

ifruimi/"     .... 

I,  ami  Kin^W  and 

overnment  "in  any 

..."  (p.  !I7.) 

f  olVemieis  for  viola- 

/(■    for  siuii  ti  iai  by 

n  country."  (p.  !>><.) 

ces  wi^iiini^,  "to  in- 

;    Sea  in   which   the 

Okhotsk."     (p.  !•«) 

conference  on  April 

)p()seci  conventional 

cliuleil,  ami  a/so  the 

(I.    "Lord  Salihbury 

ition,  but  su^'u^CNted  : 

the  Sea  of  Okhotsk 

lucied  in  ihcjiro/osfil 

ip  to  Oct.  1  might  be 

;houId  be  obliged  to 

;  prepared  a  draught 
\  to  myself."  (p.  100) 
)  the  inclusion  of  the 
y  to  insist  on  the  ex- 
it seems  advisable  to 
;ason,  though  Nov.  1 
bject  of  firearms  and 
•ep<)rts,that  he  called 
Unfortunately,  Lord 
!;;anadian  government 
)rtly  be  forwarded  to 
al  of  that  document, 
ajesty's  Government, 
o  await  the  Canadian 


mpmf)rait(lunt  l)efore  prr)ctn'ding  to  draft  the  conventinti."  (10,*  >  Thin  in  the 
last  lU'sitatcli  ret'crring  to  the  negi-liatioiiK,  through  Mr.  I'lu  ...  which  we 
hnve  published  in  extiuso. 

Mr.  Hlaine,  in  his  despatch  of  Mny  L')>,  '!I0,  referit  to  an  unpublished  letter 
of  Mr.  Plulps,  of  I'-'  Sept.  'HH,  ns  Htafing  that  the  tonvention  had  been  "vir- 
tually agrceil  upon,  except  in  its  detail-.;  but,  that  Canada  objected  to  any 
Huch  rcNtrictions,  niul  that  until  itn  couMent  could  be  obtained,  iler  Majenty's 
(loverinent  was  not  willing  to  enter  into  the  convention."  (p.  <IH,  II.  K,  I). 
4ri(l  U\  CIS)  'riu'reujion,  Mr.  Hlaine  breaks  our  with  ".  .  Lord  Salis- 
bury woulil  have  dealt  more  frankly,  if,  in  the  beginning,  he  hail  intormed 
Minister  I'helpsthat  no  arrangement  could  be  made  unlens  Canada  concurred 
in  it.  and  that  all  negotiation  with  the  Biitisli  Government  direct  was  but  a 
loss  of  time."  (p.  (IM.)  He  also  refers  to  "pointcil  assurance"  given  LM  April, 
'MH,bv  Lord  Salisbury  that:  "it  is  novv/rr>/^>,wv/  to  give  etVect  to  a  seal  conven- 
tion by  order  in  council,  not  by  act  of  Parliament"  (p.  tl7). 

Nothing  piiblislu'd  I»y  our  Ciovernnient  gives  such  a  tiespatch,  «.»  far  as  t 
am  (iivarr.  anil  Lord  Salislnirv  ilcnies.  L'u  June  'IM),  the  proposal,  but  points 
out  how  already,  April  '-'7.  'H'^,  Mr.  White  was  informed  by  note  that  .  .  . 
"he" — Lord  Salisbury — "had  to  refer  to  the  Canailian  CJovernment  .  .  ." 
and  April  \iK.  'sh,  concerning  the  necessity  of  an  act  of  Parliament  (p.  IM)  and 
!>l).  lie  further  cites  tVom  his  note,  p;  April,  "H.s,  to  the  Hritish  Minister  at 
Washington:  "At  this  preliminary  discussion  it  was  decided  provisionally, 
in  order  to  furnish  a  hasis  for  negotiation,  and  without  definitively  pledging 
our  (iovernnients "  {O.  I.  )  p.  Uli. 

F'rom  all  this,  it  is  clear  that  the  negotiations  of  'HH  never  passed  beyond 
the  most  initial  steps;  a  basis  for  something  beyond  and  still  to  be  done.  If 
a  draft  of  regulations  was  submitted  by  us.  as  Mr.  Phelps  says  it  was  (p.  7l>7 
II.  M.)  it  has  not  been  published,  ami  the  correspondence  published  does  not 
show  its  submittance,  nor  does  it,  after  H  Feb'y  'M^,  refer  to  such  a  draft  as 
even  existing.  Mr.  Phelps  si\\s:  "But  after  a  eoiisiderahle  delay  it  trans- 
pired that  an  «//e.v/rr/(7/ obstacle  had  arisen.  It  came  to  he  nnderstood  thixt 
Canada  ....  declined  to  assent  to  ...  .  the  proposed  restric- 
tions .  .  .  ."  (p.  7117).  Mr.  Hlaine,  in  his  letter  of  2'.>  May.  'HO,  makes 
a  somewhat  similar  assertion,  as  we  have  just  seen,  and  then.  4  June,  ''.•0, 
charges  that  England  '•oUruptly  closed  the  negotiations"  (p.  72  II.  E.  D. 
4.')0  ol  C.  I  S.).  In  reply  to  the  Mritish  quotation  of  Mr.  Phelps's  own  re- 
mark on  April  II,  'HH,  that:  "...  with  a  general  election  impending,  it 
would  be  of  little  use  and  imieed  hardly  practicable  to  conduct  any  negotia- 
tio-  'i  to  its  issue  befoie  the  general  election  has  taken  place."  .  Mr.  Hlaine 
swallows  his  own  words  with  the  greatest  alacrity  by  saying:  "I  am  quite 
ready  to  admit  that  such  a  statement  made  by  Mr.  Phelps  might  now  be 
adduced  as  one  of  the  reasons  for  breakirig  oil"  the  negotiation,  //  iu  fact  the 
negotiation  had  been  broken  off,  but  Lord  Salisbury  immediately  proceeded 
tvith  the  negotiation."'  (July  !!•,  ".M)  p.  Ha.)  The  British  despatch  of  20, 
June  'ilO,  asserts  that  Mr.  White's  version  of  what  Mr.  Blaine  calls  the  pointed 
assurance  of  2;!  April,  '88,  was  a  mistake,  and  shows  how  it  was  cleared  up  by 
two  English  notes  of  27  and  28,  April,  '88,  explaining  the  legislative  measures 
necessary  to  be  taken  by  the  Hritish  administration,  and  stating  clearly.  "But 
neither   convention    nor   bill    is   drafted   yet,  because    we    have    not  got  the 


!    M 


I  II 


S^iUUiMuu/' , 


opinions  from  Canada  wiiicb  arc  ncci-ssMv  to  enable  us  to  proceed."  (p.  !)1.) 
Already,  on  May  Kl,  '.ss,  our  cluuj^i'  had  Icarneil  that  Canada  wanted  to  be 
heard  iVoni  before  anvthin^j  was  concluded,  so  tiicre  was  nn  "consiilerable 
delay,"  nor  did  this  "transpire"  or,  "become  understood,"  but  was  all  oflioially 
communicated,  plainly  and  straightforwardly.  Nej^otiators  in  international 
affairs  must  be  supposed  to  possess,  and  to  be  i,niided  in  all  their  doinj^s  by, 
the  necessary  elementary  knowledge  of  such  aiVairs ;  to  be  conversant  with 
the  constitutional  powers  of  their  respective  governments,  their  methods  of 
legislation,  and  their  relations  with  subordinate  branches  (States  or  Colonies). 
Neither  British  consultation  of  Canada,  nor  the  hitter's  opposition  ought  to 
have  been  an  "«w<'.v/rr//'(/ obstacle"  for  our  diplomatists.  The  former  was  in 
strict  conformance  to  British  practice,  demonstrated  to  us  ad  nriiscum  dur- 
ing the  'Many  previous  negotiations  on  Canadian  questions,  and  the  latter  was 
the  inevitable  result  of  our  high-handed  ;ind  illegal  interference  with  a  profit- 
able and  lawful  business.  An  American  statesman  of  any  experience  could 
no:  have  expected  anything  else,  and  would  have  been  astonished  if  he  had 
found  a  British  minister  so  negligent  of  his  duty  as  not  lo  consult  the  colony 
primarily  alrectcd,  aiui  a  colony  t-o  blind  to  its  rights  and  interests  as  not  to 
object. 

But  Mr.  Phelps  misses  another  and  still  more  essential  point.  Such  assent, 
to  enter  into  some  sort  of  agreement  for  protection  of  the  seals,  as  may  have 
been  given  by  Great  Britain,  was  given  in  reliance  upon  the  truth  of  our 
representation  that  under  continuance  of  pelagic  sealing,  speedy  extermina- 
tion of  the  seals  was  inevitable.  The  published  correspondence  does  not 
show  -when  Canada  first  denied  this  theory .  She  may,  or  she  may  not,  have 
used  due  diligence  to  collect  data  and  to  present  counter-evidence;  at  all 
events,  a  Canadian  memorandum  was  officially  communicated,  i)  March,  '90, 
to  Secretary  Blaine  (p.  2()-51)  in  rebuttal  of  the  extermination  theory.  This 
memorandum  demonstrates  the  absiu'dity  of  one  of  our  arguments;  the  one 
that,  as  unrestricted  sealing  had  exterminated  the  seal  in  the  Southern  Oceans, 
it  could  only  have  the  same  result  in  Bering  Sea,  by  showing  that  the  methods 
of  sealing  in  these  respective  seas  were  entirely  different,  namely  :  In  the 
south,  no  sealing  at  sea,  no  protection  of  rookeries,  out  persistent  pursuit  on 
the  rookeries  and  the  slaughter  of  every  seal  found  on  them;  in  the  north, 
unrestricted  sealing  only  at  sea,  with  protection  for  the  rookeries,  as  inadequte 
or  as  perfect  as  our  Government  chooses  to  make  it.  The  testimony  appears 
to  be  vpry  strong,  and  consists,  in  part,  of  the  statements  of  our  own  officials. 
AH  this,  Mr.  Phelps  does  not  even  allude  to.  As  far  as  his  article  is 
concerned,  one  wouK  fancy  that  our  extermination  theory  was  an  established 
fact,  which  nobody  had  ventured  to  question.  In  support  of  the  theory,  he 
quotes  Mr.  Blaine's  statement  that  our  rookeries,  "carefully  guarded  and  pre- 
served,"yielded  from  '70  to'ilO,  100,000  skins  per  year ;  that  "Canadian  intrusion 
began  in  '8f!,  and  so  great  has  been  the  damage  resulting  from  their  destruction 
of  seal  life  in  the  open  sea  surrounding  the  Pribyloff  Islands,  that  in  18!)0  the 
Government  of  the  United  States  limited  the  Alaska  Company" — in  reality  the 
j  new  or  North  Americair  Company — "to  sixty  thousand  seals.  But  the  com- 
pany was  ABLE  TO  SECURE  Only  twenty-one  thotisafid  seals."  Even  if  true,  this 
argumentation  would  have  no  other  foundation  than  that  old  fallacy  in  logic, 
^ost  hoc,  ergo  propter  hoc,  according  to  which,  a  certain  state  of  things  is 


us  to  proceed."  (p.  !)1.) 
lat  Canada  wanted  to  be 
re  was  no  "considerable 
od,"  but  was  all  ofiicially 
)tiators  in  international 
;d  in  all  their  doinj^s  by, 
i ;  to  be  conversant  with 
iments,  their  methods  of 
lies  (States  or  Colonies), 
ter's  opposition  ought  to 
ists.  The  former  was  in 
!  to  us  ad  nrttsetim  dur- 
istions,  and  the  latter  was 
nterference  with  a  profit- 
of  any  experience  could 
leen  astonished  if  he  had 
not  to  consult  the  colony 
ts  and  interests  as  not  to 

tial  point.     Such  assent, 

)f  the  seals,  as  may  have 

e  upon  the  truth  of  our 

aling,  speedy  extermina- 

orrcspondence    does    not 

ay,  or  she  may  not,  have 

counter-evidence ;  at  all 

municated,  1)  March,  '00, 

rmination  theory.     This 

our  arguments  ;  the  one 

in  the  Southern  Oceans, 

howing  that  the  methods 

tferent,  namely  :  In   the 

out  persistent  pursuit  on 

on  them;  in  the  north, 

rookeries,  as  inadequte 

The  testimony  appears 

nts  of  our  own  officials. 

As  far  as  his  article   is 

eory  was  an  established 

pport  of  the  theory,  he 

fully  guarded  and  pre- 

at  ''Canadian  intrusion 

g  from  their  destruction 

slands,  that  in  1890  the 

ompany" — in  reality  the 

d  seals.     But  the  com- 

als."   Even  if  true,  this 

hat  old  fallacy  in  logic, 

rtain  state  of  things  is 


\\ 


U 


ascribed  solely  to  some  one  circumstance  or  condition  ;  as  if  none  of  the  other 
circumstances  oi  conditio, is,  however  inevitably  connected  with  said  state  of 
things,  had  or  could  have  !iad  any  inthieiue  wiiatover.  Assuming  that  the 
number  of  seals  resorting  to  uur  islands  has  decreased,  this  does  not  prove 
that  the  number  of  seals  resorting  to  Bering  Sea,  in  general,  has  decreased. 
Such  decrease,  even  if  general  throughout  that  sea,  may  be  due  to  other  cai'ses 
besides  excessive  marine  sealing.  And,  least  of  all,  is  the  number  of  seals 
actually  killed  on  ti.e  islands  by  the  lessees,  any  criterion  of  the  number  of 
seals  resorting  to  the  islands,  and  that  consequently  miglit  be  killed  during 
any  given  season.  On  all  these  points,  our  official  publications  furnish  very 
interesting  testimony.  In  his  evidence  before  the  House  Committee  investi- 
gating, during  the  summer  of '88,  the  fur  seal  fisheries,  Mr.  C.  A.Williams,  one 
of  the  founders  of  the  old  Alaska  Commercial  Co.,  speaking  of  the  Russian 
management  of  the  islands,  remarked,  "It  was  supposed  at  that  time  that  the 
commencement  of  seal  life  on  the  islands  of  Bering  and  Copper"  —  the  rook- 
eries in  the  western  part  of  Bering  Sea  which  still  belong  to  Russia  —  "prob- 
ably took  place  by  reason  of  the  indiscriminate  kiIlin'j;on  those" — the  Priby- 
loff — "islands,  diverting  tlie  seals  from  their  usual  huants  and  inaking  them 
seek  some  other  localities.  J^.  Was  there  a  large  number  of  seals  which 
left  the  Pribylov  group  and  went  over  to  the  Russian  islands.!"  A.  You  could 
hardly  expect  them  to  go  in  a  body.  There  had  hardly  been  any  csealing  or 
seal  life  to  any  extent  on  the  Commander  Islands  or  Copper  and  Bering.  It 
had  not  attracted  the  attention  of  the  Russians,  but  after  the  indiscriminace 
killing  on  the  islands  of  St.  Paul  and  St.  George,  it  was  noticed  that  seal  life 
increased  rapidly  on  the  other  islands,  and  the  supposition  is  a  natural  one 
that  they  were  diverted  from  the  islands  on  which  they  had  before  been  un- 
disturbed and  nought  other  places."  (p.  77,  78  H.  R.  3883  50  C.  2  S.)  "In- 
deed, it  wns  predicted  by  Russian  authorities,  conversant  with  seal  life,  at 
the  time  o.'th^  cession  of  the  Territoiy  that  the  reckless  and  indiscriminate 
killing  of  seal  by  the  Americans  would  soon  drive  the  Pribylov  herd  to  the 
Russian  islands,  and  thus  they  (the  Russians")  would  regain  and  '.etain  all 
that  was  most  valuable  in  the  ceded  territory."  (p.  112)  Professor  Elliott  in 
his  monograph  on  the  seal  islands  in  Vol.  8  of  the  Census  of  1880,  expresses 
the  same  idea,  "If  the  Russian  islands  are  suitable  for  rookeries  what  guaran- 
ties have  we  that  the  seal  life  on  Copper  and  Bering  islands,  at  some  future 
time  may  not  be  greatly  augmented,  by  a  corresponding  diminution  of  our 
own,  with  no  other  than  natural  causes  operating. "(p.  (!!).)  He  also  says  that 
the  seals  "are  not  particularly  attached  to  the  respective  places  of  their  birth" 
that  they  require  for  their  food  very  large  quantities  of  fish,  and  that  tiie  wan- 
derings of  theue  latter  determine  the  wanderings  of  the  former.  It  is  not 
impossible,  nor  improbable,  that  the  fishes  of  the  Pacific  arc  given  to  migra- 
tions similar  to  those  of  the  fishes  of  the  Atlantic,  where  we  know  that  dif- 
ferent kinds  have  deserted  old  haunts  en  masse  and  for  years,  perhaps  to  re- 
appear by  and  by,  for  some  equally  inscrutable  reason.  Or,  the  killing  on 
the  islands,  considered  proper  and  legitimate  by  the  government  and  lessees 
may  strike  the  seals  as  "indiscriminate  slaughter,"  to  be  escaped  from  at  any 
sacrifice,  even  that  of  their  homes. 

Then,  again,  seals  are  subject  to  "immense  mortalitj'"  in  consequence  of 
unfavorable  weather,  or,  of  epidemics   even.      Professor  Elliott,  in  his  said 


:i??> 


10 


I  1 


'^ 


monoijraph,  (p.  ;!S;5)  speaks  of  tJie  excessively  coUi  winter  of  18;5o-;i(!,  and 
the  continuant;e  of  the  cold  far  into  tlie  smnmcr  of '.'ill,  whicli  caused  such  an 
"immense  moitality"  of  scale  in  Bering  Sea,  and  Mr.  A.  Howard  Clark,  in 
his  article  on  "The  Antarctic  Vu\  Seal,"  etc.,  mentions  Captain  Morrell's  re- 
port of  the  evidence  of  the  dcatii  by  disease  of  half  a  million  on  Possession 
Island  (Lat.  2(>°  nV  S.,  l."i  12'  E.)  and  of '■immense  niimhers"  on  two  small 
islands  near  by.  (The  Fisheries  and  Fish  Industries  of  the  United  States  by 
the  United  States  Commissionei  of  Fish  and  Fisheries,  puhlished  1SS7,  Sec. 
V,  Vol.  2,  pp.  i\i\'d  and  IK!)  see  also  Elliott's  Monograph,  Vol.  M,  U.  S.  Cen- 
sus, 1880,  p.  G2.) 

Just  so  little  as  a  decrease  in  the  number  of  seals  resortinjj  to  our  islands — 
if  such  decrease  be  a  fact — proves  that  it  is  caused  by  sealing  beyond  the 
three-mile  belt,  just  as  little  is  the  action  of  r.ur  government  in  reducing  the 
number  to  be  lawfully  killed  on  these  islands  by  the  le-^sees,  an\-  such 
proof!  True,  this  reduction  amounts  to  40  per  cent.,  but  the  indications  are 
that  it  is  nothing  more  than  a  political  move,  the  throwing  of  a  sprat  to  catch 
a  whale.  If  the  British  Government  coidd  be  induced  by  any  such  move  to 
withdraw  from  its  position,  and  thus  to  give  us  the  practical  monopoly  of  the 
seal  industry,  the  sacrifice  of  the  entire  island  catch  for  several  years  would 
be  only  a  tritle !  The  lessees,  on  the  other  hand,  know  that  if  all  other  con- 
ditions remain  as  before,  a  reduced  supply  of  seal  skins  in  the  selling  market 
would  cause  a  corresponding  rise  in  price.  The  old  Alaska  Company's  wit- 
nesses testified  how  that  con'pany  used  to  "nin\se"  the  market.  One  of  their 
employees,  Dr.  Mclntire,  stilted:  "....,  and  we  took  the  full  quota, 
except  during  two  _)e»rs.  During  these  years  we  failed,  not  because  we  could 
not  g^t  enough  seals,  but  because  the  market  did  not  demand  them.  There 
were  plenty  of  seals."     (II.  R.  ;5883.     50  C.  2  S.  p.  121  ;  see  also  p.  101.) 

"...  but  the  Company  was  able  to  secure  only  21,000  seals"  says  Mr. 
Phelps  (H.  M.  7()7.^  Certainly,  but  the  Company's  agent  on  the  Islands 
says,  only  because  die  Treasury  Agent  there  prevented  them.  The  latter 
forbade  killing  after  the  20lii,  July  'i)0,  eleven  days  earlier  than  usual,  giving 
as  his  reason,  an  alri'-niing  falling  oft"  in  numbers,  and  suggesting  a  stoppage 
of  killing  for  an  'indefinite  number  of  years."  Per  contra,  the  Company's 
agent  protested,  stating  '"VVe  have  every  reason  to  believe  from  the  marked 
increase  of  net"  arrivals  oi fine  seals,  that,  if  we  were  allowed  by  3'ou  to  con- 
tinue our  kil'.i  Tg  und«r  the  law.  we  could  fill  our  quota  of  00,000  seals."  (O.I. 
S.  E.  D.  4!),  5".  C.  2  8.  pp.  4,  (I  and  27.)  The  Treasury  Agent  refers  to  the 
presence  of  Professor  H.  W.  Elliott  on  the  Islands  in  July  '00.  as  "Treasury 
Agent"  and  to  a  "forthcoming  report"  of  Prof.  Elliott's.  (pp.  il  and  152.) 
■^he  public  has  .lot  been  allowed  to  see  it  as  _\et. 

Mr.  Phelps  tells  us  in  the  beginning  of  his  paper,  that:  "The  .Maska  fur 
seal  fishery  ....  was  .1  iiiaterial  element  in  the  value  of  that  province 
.  and  one  of  the  principal  inducements  upon  wliich  the  purchase  was 
made."  Two  American  witnesses,  both  particularlv  familiar  with  the  subject 
matter,  Prof.  Elliott  in  his  monograph  already  cited,  and  Mr.  C.  A.  Williams 
of  the  old  Alaska  Company  testify  to  the  extraordinary  ignorance  of  the  value 
of  these  fisheries  prevailing  everywhere,  until  the  Alaska  Company  demon- 
strated it.  Elliott  in  Vol  8,  U.  S.  Census  of  1880,  p.  (18,  and  Williams  in  H. 
Rep.  ;-58.s3,  oO  C  2  S.  p.  88.)       Prof,   Elliott  points  out  that  Senator  Sumner 


!l; 


winter  of  18;5n-;i(>,  and 
i;,  wliich  caused  such  an 
r.  A.  Howard  Clark,  in 
ns  Captain  Morrell's  rc- 
a  million  on  Possession 
numbers"  on  two  small 
of  the  United  States  by 
ies,  published  iSS7,  Sec. 
•aph,  Vol.  «,  U.  S.  Cen- 

;sortini(  to  our  islands — 
D  by  sealinef  beyond  the 
ernment  in  reducinji;  the 
y  tlie   lessees,   any  such 
.,  but  the  indications  are 
owing  of  a  sprat  to  catch 
:ed  by  any  such  move  to 
ractical  monopoly  of  the 
1  for  several  years  would 
low  that  if  all  other  con- 
ins  in  the  selling  market 
1  Alaska  Company's  wit- 
he market.     One  of  their 
id  we  took  the  full  quota, 
led,  not  because  we  could 
>t  demand  them.     There 
21  ;  see  also  p.  101.) 
ily  1'1,0()0  seals"  says  Mr. 
y's  agent  on  the  Islands 
:nted  them.      The   latter 
rlier  than  usual,  giving 
l1  suggesting  a  stoppage 
contra,  the  Company's 
lelieve  from  the  marked 
allowed  by  you  to  con- 
la  of  (iO,onO  seals."  (O.I. 
;ury  Agent  refers  to  the 
July  '90,  as  "Treasury 
iott's.        (pp.  :'.  and  Wl.) 

that:  '-The  .\laska  fur 
le  value  of  that  province 
which  the  purciiase  was 
familiar  witii  the  subject 
and  Mr.  C  A.  Williams 
•y  ignorance  of  the  vulue 
laska  Company  d^mon- 
(18,  and  Williams  in  H. 
ut  that  Senator  Sumner 


»  1 


n 


was  the  chief  spokesman  in  advocacy  of  the  treaty  of  1807,  that  his  speech, 
(!)  April  '(17)  "is  the  embodiment  of  everything  that  could  be  scraped  togeth-* 
er,  having  the  faintest  shadow  of  authenticity,  by  all  the  eager  friends  of  the 
purchase,  which  gave  the  least   idea   (      any   vr.'uaole  natural  resources  in 
Alaska;  therefore,  when  in  summing  up  all  this,  Sumner  makes  no  reference 
whatever  to  the  seal  islands  or  the  fur-seal  itself,  the  extraordinary  ignorance 
at  home  and  abroad,  relative  to  the  Pribyloff  Islands  can  be  well  appreciated." 
And  it  is  a  fact  that  Mr.  Sumner  does  not  even  mention  the  seal  rookeries. 
He  speaks  of  "the  seal"  as  having  "always  supplied  the  largest  multitude  of 
furs  to  the  Russian  Company,"  but  he  seems  to  have  thought  that  these  furs 
were  those  of  the  "common  seal,"  for  he  goes  on  to  say:  "Besides  the  com- 
mon seal,  there  are  various   species"   some   of  which    he  names,  and  then 
winds  up:  "There  is  also  the  sea  bear,  or,   Ursine  Seal,  (O.  I.)  verv  num- 
erous in  these  waters,  whose  skin,  especially  if  young,  is  prized  for  cloth- 
ing."    (p.  317,  vol.  11,  Sumner's  Works.)      He  ascribed  a  far  greater  value, 
present  and  prospective,  to  the  fish  fisheries  of  Alaska,  than  to  its  entire 
catch  or  trade  in  furs.   (p. 321-2).     He  did  not  share  Mr.  Blaine's  delusion  of 
the  "enormous  and  inordinate"  profits  of  the  Russian  American  Company. 
He  speaks  of  the  territory  to  be  ceded  as  :  "     .     .     .     .     outlying  possesions 
from  which,  thus  far,  she  has  obtained   no  income  commensurate  with  the 
possible  expense  for  this  protection."   "Its  settlements  are  only  encampments 
or  lodges.     Its  fisheries  are  only  a  petty  perquisite,  belonging  to  local  or  per- 
sonal adventurers,  rather  than  to  the  commerce  of  nations."     (p.  202.)     He 
gives  a  statement  of  the  receipts  and  expenditures  of  the  Russian  American 
Company  from  1850-5!)  inclusive  (p.  252-3)  according  tc   which,  the  Compa- 
ny's dividends  for  that  period  were  at  the  rate  of  only  $101,51)5.30  per  annum, 
(which  agrees  pretty  nearly  with  H.   H.  Bancroft's  figures  of  $102,000  per 
annum  for  the  period  1842-01),  but  Mr.  Sumner's  statement  also  shows  that 
only  20-21  per  cent,  of  the  receipts  were  derived  from  the  "sale  of  furs"  — 
that  is,  all  the  furs  collected  from  all  the  Company's  stations,  not  from  the 
Pribyloffs  alone  —  whilst  48-50  per  cent,  was  derived  from  "tea  traffic".   This 
latter  source  of  profit  was  due  to  the  Company's  monopoly  of  the  importation 
of  tea  into  Russia  by  sea.       This  "tea  traffic"  profit  was  not  a  "natural  re- 
source" of  Alaska,  nor  available  for  the  United  States  as  a  source  of  income. 
Taking  out  of  the  account,  therefore,  this  profit  of  roubles  4, 145, 80!). 79,  less 
charges,  namely :  duty,  transportation  and  packing,  and  R.  200,000  for  insur- 
ance, 2,551,401.57;  say  net  rubles  1,594,408.22;     not  only  is  the  whole  divi- 
dend of  R.  1,354,004  swallowed  up,  but  an  actual  deficit  0f2jg.S04.22  is  left. 
Nor  is  it  difficult  to  understand  that  the  fur  trade,  as  managed  by  the  Rus- 
sian American  Company, should  not  have  yielded  a  better  result,  because  such 
management  was  in  no  sense  that  of  capable  and  careful  merchants,  and 
besides  th.;  price  of  their  main  staple  has  risen  enormously  since  those  times, 
and  the  quantity  has  about  quintupled.      Mr.  Williams  states  that  up  to  the 
"fifties'   the  Russian  American  Company  sent  some  15,000 — 20,000  sealskins 
to  London,  dried,  after  that,  salted;    and  that  the  Company  had  a  contract 
for  their  sale  delivered  in  London,  at  14  shillings  sterling,  say  $3.50,  which 
remained  in   force  until  the  cessation  of  the  Russian  American  Company, 
(p.  78,  H.  R.  3883.  50  C.  2  S.)     At  the  time  of  the  cession  of  Alaska,  nobody 
dreamed  of  the  possibility  of  such  a  business  in  fur  seals  as  the  Alaska  Com- 


i>j*tei^'^.vwe 


12 


I        i 


4 


pany  built  up  during  the  term  of  its  Iiase,  and  though  fasliion  inay  have  been 
a  powerful  aid  to  this  Coinpany,  its  success  has  been  mainly  due  to  the  ex- 
cellent manaf^ement  and  tact  of  the  very  capable  men  who  had  its  direction. 

Mr.  Phelp's  statements,  considered  so  far,  are  those  which  concern  alleged 
facts,  having  nothing  to  do  with  law,  and  susceptible  of  refutation  by  the 
counter  proofs  submitted.  We  now  come  to  his  assertions  regarding  tacts 
in  their  legal  bearing,  and  his  dicta  concerning  law.  He  makes  several  ar- 
guments, the  first  of  which  is  that :  the  seals,  "making  their  home  on  Amer- 
ican soil,  ....  belong  to  the  proprietors  of  the  soil,  and  are  a  fart  of 
i/icir property,  and  do  not  lose  this  quality  hy  passing  from  one  part  of  the 
territory  to  another,  in  a  regular  and  periodical  migration  necessary  to  their 
life,  even  though  in  making  it,  they  pass  temporarily  through  water  that  is 
more  than  three  miles  from  land."  (p.  7(!1),  H.  M.)  "The  simple  question 
presented  is  whether  the  'United  States'  government  has  a  right  to  protect  its 
property  and  the  business  of  its  people  from  this  wanton  and  barbarous  de- 
struction by  foreigners,  which  it  has  made  criminal  by  Act  of  Congress ;  or 
whether  the  fact  that  it  takes  place  upon  waters  that  are  cla.ined  to  be  a  part 
of  the  open  sea  affords  an  immunity  to  the  parties  engaged  in  it  which  the 
government  is  bound  to  respect."     (p.  7(!7.) 

Mr.  Phelps  thinks  that  to  the  "ordinary  mind"  this  question  would  not  be 
a  difficult  one.  Probably  not,  because  the  falseness  of  the  premises  on  which 
the  alternative  is  based  would  escape  detection  by  such  a  mind,  but  any  mind 
with  a  grain  of  logic  sees  at  once  that  Mr.  Phelps  is  merely  begging  the  real 
question;  the  primary  one,  which  must  be  settled  in  his  favor  before  his 
proposition  can  be'considered,  and  that  is:  can  rve  or  a?iy  natioji  have  any 
property  zvhatever  in  seals  or  any  wild  animals,  found  beyond  the  national 
territorial  jurisdiction'?  Of  course  Mr.  Phelps, a  passed-master  in  law,  knows 
that  in  law  there  is  no  property  right  in  wild  animals,  whether  fish,  mammal 
or  bird,  outside  of  territorial  limits;  that  any  and  everybody  is  free  to  appro- 
priate or  kill  them,  so  long  as  in  doing  this  no  right  of  territory  is  violated. 
To  enable  us  to  exercise  lawfully  any  right  of  proprietorship  in  wild  animals 
like  seals,  we  must  confine  them  within  our  territorial  jurisdiction.  To  allow 
them  to  leave  our  territory,  to  escape  into  the  "high  seas"  is  to  deliver  them 
up  to  the  tender  mercies  of  mankind  in  general.  And  to  pretend  to  prevent 
Non-Americans  from  doing  what  they  like  with  seals  foimd  in  the  "high 
seas"  is  to  fly  in  the  face  of  all  international  law,  and  consequently  to  make 
ourselves  ridiculous.  Nor  is  the  case  altered  one  bit  by  the  fact  that  the 
seals,  or  rather  the  mere  majority  of  them,  are  born  on  our  soil,  nor  by  the 
unproved  assertion  that  marine  sealing  is  inhuman  and  wasteful,  nor  by  the 
disingenuous  implication  through  cunning  wording,  that  the  seals  migrate 
from  one  part  of  our  territory  to  oome  other  part  of  the  same  territory,  and 
merely  "pass  temporarily  through  water  that  is  more  than  three  miles  from 
land."  As  a  matter  of  fact,  marine  sealing  is  no  more  wasteful  or  inliuman 
than  seinc^-fishitig  of  mackerel,  etc.  If  Mr.  Phelps's  theory,  that  the  seal  be- 
longs to  the  territory,  rests  on  the  reasons  which  he  gives,  namely:  that  the 
seal  is  not  a  "wanderer  of  the  sea,"  but  has  "a  fixed  habitation  on  the  Alaskan 
shore,  from  which  it  never  long  departs,  and  to  which  it  constantly  returns" 
(7()(!  H.  M.),  then  this  theory  is  exploded  by  the  following  facts  :  The  seals 
do  not,  on  an  average,  stay  more  than  4   1-2  months  on  our  territory,  after 


gh  fashion  may  have  been 
eon  mainly  due  to  the  ex- 
iien  who  had  its  direction, 
osc  which  concern  alleged 
itible  of  refutation  by  the 
assertions  regarding  facts 
iw.  He  makes  several  ar- 
king  their  home  on  Amer- 
the  soil,  and  are  a  fart  of 
issing  from  one  part  of  the 
igration  necessary  to  their 
irily  tlirough  water  that  is 
[.)  "The  simple  question 
it  has  a  right  to  protect  its 
wanton  and  barbarous  de- 
al by  Act  of  Congress  ;  or 
lat  are  cla.ined  to  be  a  part 
is  engaged  in  it  which  the 

:his  question  would  not  be 

is  of  the  premises  on  which 

such  a  mind,  but  any  mind 

is  merely  begging  the  real 

ed  in  his  favor  before  his 

ive  or  any  nation  hax'e  any 

found  beyond  the  national 

assed-master  in  law,  knows 

lals,  whether  fish,  mammal 

everybody  is  free  to  appro- 

ght  of  territory  is  violated. 

)rietorship  in  wild  animals 

•ial  jurisdiction.    To  allow 

h  seas"  is  to  deliver  them 

And  to  pretend  to  prevent 

seals   found  in   the  "high 

and  consequently  to  make 

e  bit  by  the  fact  that  the 

rn  on  our  soil,  nor  by  the 

n  and  wasteful,  nor  by  the 

g,  that  the  seals  migrate 

of  the  same  territory,  and 

ore  than  three  miles  from 

more  wasteful  or  inhuman 

s  theory,  that  the  seal  be- 

e  gives,  namely  :  that  the 

habitation  on  the  Alaskan 

lich  it  constantly  returns" 

lowing  facts  :      The  seals 

ths  on  our  territory,  after 


\  \ 


1)( 


l-^a;; 


which  they  leave  Bering  Sea  to  become  for  7  1-2  months, "deni/ens  and  wan- 
derers of  the  sea"  in  the  Pacific.  (II.  Rep.  SSSfi.oO  C.  2  S.  p.  89.)  There  is 
no  evidence  of  their  "constantly  returning"  to  their  former  habitation,  which 
ttiey  are  known  to  have  abandoned  in  great  numbers  more  than  once.  (p. 
77  and  78  and  U.  S.  Census  of '80,  Vol.  8,  p.  (li)  and  10!»). 

Mr.  Phelp's  reference  to  national  game  laws  protecting  wild  animals  has, 
of  course,  no  hearing  on  the  question  at  issue;  for  any  nation's  game  and 
fishery  laws  are  limited  in  their  scope  to  that  nation's  territorial  jurisdiction, 
outside  of  which  these,  or  other  municipal  laws,  can  be  applied  by  such  nation 
against  foreigners,  only  with  the  consent  of  their  governments.  He  knows 
this  so  well  that  he  admits  expressly:  "This  general  proposition  will  not  be 
questioned"  (708  H.  M.)  Nevertheless,  he  imagines  that  he  can  evade  the 
consequences  of  this  axiomatic  truth  by  giving  a  novel  definition  of  "the  free- 
dom of  the  sen"  and  invoking  fictitious  rights  of  property. 

"In  what  does  the  freedom  of  the  sea  consist.'  What  is  the  use  of  it  that 
individual  enterprise  is  authorised  to  make,  under  that  international  law 
which  is  only  the  common  consent  of  civilization?  Is  it  the  legitimate  pur- 
suit of  its  own  business,  or  the  wanton  destruction  of  the  valuable  interests 
of  nations?"  He  tells  us  that  the  proposition  "  .  .  .  that  these  acts,  pro- 
hibited by  American  law,  unlawful  to  Canadians  wherever  territorial  juris- 
diction exists,  .  .  .  and  which  are  wanton  and  destructive  everywhere, 
become  lawful  and  right  if  done  in  the  open  sea,  and  are  therefore  a  proper 
incident  to  the  freedom  of  the  sea"  (p.  7(!8)  that  this  proposition  is  refuted 
by  its  mere  "clear  statement"  "in  the  minds  of  all  who  are  capable  of  a  sense 
of  justice  and  able  to  discriminate  between  right  and  wrong."  (p.7(!8  H.  M.) 
Now  let  us  present  Mr.  Phelps'  contention  in  the  most  forcible  way  possible, 
by  assuming,  for  argument's  sake,  that  sealing  in  the  open  sea  is  morally  a 
crime,  more  heinous  than  the  slave  trade  or  even  murder,  and  even  then,  every 
sound  jurist  must  admit,  that  such  moral  criminality  gives  us  no  legal  right 
to  interfere,  in  however  slight  a  manner,  with  this  pursuit  by  foreigners  out- 
side of  our  jurisdiction  !  Every  textbook  declares  that  even  murder  commit- 
ted on  the  high  sea  is  not  justiciable  in  any  court,  except  in  one  of  the  nation 
under  whose  flag  the  crime  was  perpetrated  I  And  that  was  precisely  the 
position  which  our  government  has  always  maintained  with  regard  to  the 
slave  trade.  We  were  the  first  to  declare  that  trade  a  crime,  and  to  enact 
the  death  penalty  for  it,  and  yet  we  successfully  denied  the  right  of  any  for- 
eign authority  to  call  an  American  to  account  for  it,  whilst,  as  a  corollary,  we 
disclaimed  for  ourselves  any  such  right  against  foreigners.  England,  did  for 
a  time,  arrogate  to  herself  a  right  to  try  in  her  courts  slavers  of  nations 
whose  own  statutes  forbade  that  trade,  and  her  courts  condemned  some  for- 
eign vessels  on  that  express  ground.  Such  pretensions  have  long  since  been 
abandoned  by  her,  and  even  at  the  time  when  they  were  still  upheld,  her 
judges  declared  emphatically  the  immunity  from  British  interference  of  all 
those  foreign  slavers, whose  own  national  laws  did  not  forbid  the  trade.  (May 
1813,  the  Diana,  1  Dodson,  p.  1)5).  Even  if  revived,  these  exploded  British 
pretensions  could  not  serve  as  a  precedent  against  British  vessels  for  sealing 
in  the  open  sea,  because  no  provision  of  international  or  of  British  law  makes 
that  pursuit  criminal  or  punishable. 

Mr.  Phelps  speaks  of  "...     .     these  acts"  (sealing)  "prohibited    by 
American  law, "as  if  such  a  prohibition  were  by  that  law  extended  to  the  open 


ifin 


u 


I  I 


i  I 


Kca,  and  as  if,  in  that  case,  the  proliihition  were  of  any  validity  against  f  ir- 
. eigners.  All  American  law  that  bears  upon  tliat  point  is  contained  in  Sec. 
l!lo(i,  Revised  Statutes,  the  scope  of  wliicli  is  confined  to  "the  territory  of 
Alaska  or  the  waters  thereof."  and  in  tlie  act  of  ;!  March,  188!),  which  makes 
Sec.  l!)o()  applicable  to  "  .  .  .  all  the  dominion  of  the  United  States  in 
the  waters  of  Bering  Sea."  The  Professor  cannot  have  iiad  the  text  of  these 
enactments  in  mind  when  he  wrote,  nor  the  history  of  the  abortive  attempt 
in  the  House  to  stretch  beyond  legal  warrant  our  jurisdiction  in  Bering  Sea, 
which  found  such  a  ludicrous  end  in  the  said  act  of  18Si).  He  could  not, 
otherwise,  have  been  blind  to  the  moral  certainty,  that  our  Supreme  Court, 
(however  much  a  solitary  judge  of  an  inferior  court  has  been  led  astray) 
would  construe  such  ordinary  and  customary  phrases  as  "the  waters  thereof 
and  "the  dominion  of  the  United  States  in  Bering  Sea"  in  their  ordinary 
and  customary  legal  sense,  that  is  :  limited  to  three  miles  from  low  water 
mark, and  this  even  without  the  very  significant  evidence  that  the  House  had, 
on  second  thoughts,  refused  to  be  lured  into  claiming  the  slightest  unusual 
extent  of  jurisdiction,  and  that,  consequently,  this  court  could  not  find  any 
vessel,  American  or  foreign,  guilty  of  a  violation  of  any  existing  American 
law,for  sealing  in  Bering  Sea,  outside  of  the  usual  three-mile  limit.  Congress 
could  forbid  marine  sealing  by  Americans  anywhere,  but  it  has  seen  fit  so 
far,  to  limit  the  prohibition  to  three  miles  seaward  from  our  shores.  In  the 
present  state  of  our  statutes  it  would  be  simply  an  academic  discussion, 
whether  or  not,  said  section  IWC),  if  it  had  been,  or  should  be,  extended  by 
Congress  to  any  part  of  Bering  Sea  beyond  the  three-mile  belt,  coulu  be  en- 
forced against  foreigners,  on  the  strength  of  our  alleged  "property"  in  the 
seals,  without  violating  the  law  of  nations.  The  recognized  legal  authorities 
who  are  men  pre-eminently"capable  of  a  sense  of  justice  and  able  to  discrim- 
inate between  right  and  wrong,"  are  unanimous  in  declaring  against  such  a 
hypothesis,  and  that  will  suflice  for  the  present. 

Mr.  Phelps  declines  to  restate  Mr.  Blaine's  argument,  that  Bering  Sea  is 
not,  as  between  ourselves  and  Great  Britain,  a  part  of  the  open  sea  in  conse- 
quence of  the  treaties  of  1824,  '25,  and  '07,  but  he  finds  that  "It  is  presented 
with  great  ability,  fulness  and  clearness,  and  there  seems  to  be  nothing  left 
to  be  added  in  either  particular.  It  depends  principally  upon  historical  evi- 
dence, which  must  be  closely  examined  to  be  understood  ;  and  that  evidence 
certainly  tends  very  strongly  to  support  the  result  that  is  claimed  by  the  Sec- 
retary." (H.  M.  708.)  Deference  to  Mr.  Phelps's  standing  as  a  jurist  makes 
it  impossible  to  suppose,  that  he  has  done  more  than  glance  hurriedly  over 
such  "historical  evidence"  as  Mr.  Blaine  has  seen  fit  to  manufacture  and  sub- 
mit, and  that  Mr.  Phelps  has  not  given  a  moment's  thought  to  what  has  been 
advanced  on  the  other  side.  An  examination  of  the  real  and  complete  evi- 
dence^ geographical,  historical  and  legal,  would  have  convinced  a  man  of  the 
Professor's  acquirements  that  Mr.  Blaine's  argument  lacks  every  one  of  the 
qualifications  ascribed  to  it  above ;  that  it  is  :  not  able,  for  it  fails  to  refute  or 
even  meet  the  adversary's  chief  points,  a  mere  evasion  of  which  is  attempted 
by  the  introduction  of  irrelevant  side-issues,  of  misstatements,  and  of  extracts 
falsified  by  being  wrenched  from  their  context;  by  conclusions  in  part  incon- 
sistent even  with  such  premises  as  are  presented;  subterfuges  all,  so  trans- 
parent as  not  to  stand  a  moment's  investigation. 


!ilidit_y  against  l"')!*- 

|s  contained  in  Sec. 

[o  "the  territory  of 

188!),  which  makes 

e  United  States  in 

ad  the  text  of  tiiese 

c  abortive  attempt 

tion  in  Bering  Sea, 

).      He  could  not, 

ur  Supreme  Court, 

s  been  led  astray) 

the  waters  thereof" 

"  in  their  ordinary 

les  from  low  water 

that  the  House  had, 

e  slightest  unusual 

could  not  find  any 

,•  existing  American 

lile  limit.    Congress 

ut  it  has  seen  fit  so 

our  shores.     In  the 

cademic  discussion, 

)uld  be,  extended  by 

le  belt,  coulu  be  en- 

;d  "property"  in  the 

zed  legal  authorities 

and  able  to  discrim- 

aring  against  such  a 

:,  that  Bering  Sea  is 
le  open  sea  in  conse- 
that  "It  is  presented 
ns  to  be  nothing  left 
upon  historical  evi- 
d  ;  and  that  evidence 
I  claimed  by  the  See- 
ing as  a  jurist  makes 
[lance  hurriedly  over 
rianufacture  and  sub- 
ght  to  what  has  been 
//and  complete  evt- 
ivinced  a  man  of  the 
cks  every  one  of  the 
3r  it  fails  to  refute  or 
f  which  is  attempted 
lents,  and  of  extracts 
usions  in  part  incon- 
erfuges  all,  so  trans- 


15 


It 


Not  full:  because  it  simply  ignores,  where  it  does  not  pervert,  the  most 
important  geographical  and  documentary  facts,  and  I  he  most  elementary  legal 
axioms. 

Not  clear:  because  it  is  wordy  to  tediousness.bften  illogical,  and  sometimes 
faulty  in  construction  and  grammar. 

The  Professor  in  his  next  sentence  is  quite  as  obscure  and  pu/zling  as  Mr. 
Blaine  at  his  worst.     "If  in  this  position  he"  Mr,  Blaine  "is  right,  it  is  the 
end  of  the  case.     Because  it  brings  these  waters,  as  against  Great  Britain  at 
least,  within  the  territorial  jurisdiction  of  the  United  States,  not  by  their  geo- 
graphical  situation  alone'"  but  by  the  treaties  (H.  M.  708).     This  is  an  intima- 
tion that  there  is  something  about  the  geographical  conditions  of  Bering  Sea 
which  of  itself  would  or  should  give  us  the  jurisdiction  over  it.  "The  situation 
"of  that  sea  is  between  shores  belonging  to  two  difterent  nations.     In  con- 
figuration   it   is  not   separated   from  the   Pacific  Ocean  by  a   barrier  of  land 
pierced  only  by  channels  narrow  enough  for  defence  from  on  shore,  but  this 
sea   forms  an  integral   part  of  said  ocean,   with  which    it  is  connected  by 
numerous  very  wide  channels  through  the  chain  of  the  Aleutian  Islands,  and 
west  of  these  by  an  uninterrupted  expanse  of  open  sea  of  more  tlian  500  nauti- 
cal miles  in  width.     In  situation  and  in  configuration,  then,  Bering  Sea  does 
not  possess  those  qualities  which  in  international  law  are  the  conditions  sine 
qua  nan  of  a  closed   sea,  and  which  alone  give  a  title  to  national  jurisdiction 
over  such  waters.     If  Mr.  Phelps  knows  of  any  other  geographical  character- 
istics,  even  aside  from   "situation",  which   have  such  an  etfect  in  law,  he 
ought  in  fairness  to  enlighten  an   ignorant  world  by  a  full  explanation,  and 
not  to  slur  over  so  important  a  matter  with   a  mere   implication.     Mr.  Blaine 
would  be  very  thankful  for  sucii  information,  as  it  might  ensure  a  "diplomatic 
succe^r."    The  want  of  this  information  has  forced  him  to  disavow  fervently 
all  tl.ougiits  of  claiming  Bering  Sea  as  one  closed  from  shore  to  shore,  and 
to  content  himself  with  the  make-shift  of  its  partial  closing,  over  a  belt  of  one 
hundred,  or  even  sixty  miles  only  from  the  shores.     If  the  old  hard  and  fast 
rules,  uniform  for  all  nations,  concerning  closed  seas,  the  freedom  of  the  seas, 
and  the  pursuit  on  these  of  wild  animals,  have  been  outgrown  by  the  world, 
there  ought  to  be  substituted  for  these  rules,  new  ones,  somewhat  on  the  plan 
of  the  old,  "sliding  scale",  establishing  the  precise  territorial   shore  belts  in 
conformity  with  the  varying  width  of  channels  between  seas  and  oceans,  the 
varying  value  of  a  nation's  "interest"  or  "property"  in  the  different  kinds  of 
wild  animals,  and  the  varying  degree  of  domesticity  or  vagrancy  of  the  differ- 
ent kinds  of  such  creatures.     The  successful  working  out  of  such  a  problem 
might  not  be  less  difficult  than  the  squaring  of  the  circle,  but  it  would  proba- 
bly have  the  same  fascination  for  certain  "minds".     It  would  be  interesting 
to  know  whether  this  part  of  Mr.  Blaine's  argument  recommends  itself  as 
much  to  the  Professor  as  that  part  relating  to  the  effects  of  the  treaties,  and 
if  so,  on  what  juristical  grounds. 

The  examples  which  Mr.  Phelps  cites, in  illustration  of  an  alleged  limitation 
of  the  rights  of  individuals  on  the  open  sea,  are  not  to  the  point. 

The  sea  has  never  been  closed  to  the  slave  trade  in  any  such  sense  as  he 
suggests.  (770  H.  M.)  This  trade  is  no  crime  against  international  law  now, 
any  more  than  it  was  formerly ;  it  is  only  a  violation  of  the  municipal  law  of 
certain  individual  nations,  and  this  law  is  applicable  solely  by  each  one  of 


/ 


n; 


I  I 


thcni  iiuiividimlly,  and  to  itH  own  citizens  excluHivcl^'.  But  there  is  a  Ntrik- 
Inji;  ilillerence  between  the  piocedun-  of  our  hunianitiirianR  who  ieKi«l"te(l 
nf^ainst  the  .slave  tiiuie,  and  that  ol'our  modern  stal  <hami>ions.  The  former 
j^iiarded  scrupuU)iisiy  against  inlrintjin;^  u|>on  the  international  riyhts  of  other 
btutes,  but  voluntarily  gave  up  a  lucrative  tralVic,  because  they  thought  it 
wrong,  and  they  were  not  deterred  by  the  fact  that  the  rest  of  the  world  still 
continued  it  freely.  The  latter  deliherately  violate  the  rights  of  all  others,  on 
the  plea  of  nMirality,  but  with  the  avowed  object  that  our  Government  may 
not  lose  even  a  modicum  of  its  revenue,  and  that  a  very  few  of  our  fellow  cit- 
izens may  make  a  greater  profit  out  of  their  monopoly.  The  morality  involved 
is  so  transccndant  that  it  becomes  our  duty  to  trample  upon  the  rights  of  all 
other  nations,  if  xve  can,  but  if  we  cannot,  then  that  morality  vanishes  in- 
stantly I  Mr.  Rlaine  stated,  officially,  that  if  Canadians  must  be  allowed  to 
seal  within  ten  miles  of  our  islands  the  same  privilege  "must,  of  course,  be  at 
once  conceded  to  American  vessels."  (72  H.  E.  D.  450.  51  il.  1  S.)  This  way 
of  arguing  does  not  impress  one  with  the  genuineness  of  Mr.  Blaine's  zeal  for 
the  morality  doctrine,  and  unfortunately  Mr.  Phelps  does  not  tell  us  how  it 
strikes  him. 

What  limitations  on  the  freedom  of  the  sea  belligerents  may  impose  in 
time  of  war,  has  nothing  to  do  with  the  present  controversy,  for  we  do  not 
claim  to  act  as  belligerents. 

If  Mr.  Phelps  had  investigated  the  instances,  cited  by  Mr.  Blaine,  of  alleged 
violation  of  the  freedom  of  the  sea  by  Great  Britain  in  time  of  peace,  Mr. 
Phelps  would  have  found  out  that  they  are  nothing  more  than  fictions  of  the 
Secretary's  "riotous  ima'gination",  or  else  bad  fits  of  "journalism"  of  the  Ex- 
Editor. 

The  Cevlon  Pearl  banks  are  outside  of  the  3-mile  belt,  but  though  the  shells 
are  obtained  there,  the  pearls  can  only  be  extracted  from  them  after  the  shells 
have  been  exposed  for  quite  a  while  on  the  land,  which  is  British,  and  this 
fact  is  Great  Britain's  warrant  for  taxing  and  regulating  the  business. 

All  existing  Australasian  and  Australian  legislation  concerning  pearl  fish- 
eries is  limited  in  express  terms,  either  to  British  vessels  or  to  waters  within 
three  miles  from  shore.  It  is  the  same  with  Mr.Blaine's  latest  "instance"  :  the 
alleged  British  usurpation  off  the  east  coast  of  Scotland.  The  act  there  cited 
by  him  refers  expressly  to  previous  acts  which  impose  exactly  the  same  limit- 
ations. 

The  St.  Helena  Act  was  the  outcome  of  the  policy  adopted  at  the  Vienna 
Congress  by  all  the  European  Powers  against  Napoleon  as  an  enemy,  not  of 
Great  Britain  alone,  but  of  all  mankind.  Great  Britain  having  been  by  that 
Congress  charged  with  his  custody,  and  authorized  to  take  what  measures 
she  might  think  necessary  to  ensure  it,  passed  the  said  Act.  That  provision 
of  it  which  makes  punishable,  by  Great  Britain,  the  hovering  of  even  non- 
British  vessels  within  eight  leagues  of  the  coast  of  St.  Helena,  is,  of  course,  a 
violation  of  the  rights  of  all  other  nations, except  ofthose  who, by  their  author- 
ization at  Vienna,  had  sanctioned  beforehand  Britain's  measures,  and  the  na- 
tions represented  at  Vienna  constituted  practically  the  whole  civilized  world. 
The  United  States  was  the  only  member  of  the  family  of  civilized  peoples 
which  took  no  part  in  that  Congress,  and  the  passive  indifference  with  which 
our  Government  treated  the  St.  Helena  Act  is  very  significant.     Already,  on 


I  I 


\y.  But  there  is  u  strik- 
litariiUiR  who  le^iHluted 
liaiupioiis.  Tlic  fornuT 
I'lKitioDiil  rij^litK  of  other 
tcciitise  they  tlioiight  it 
he  rest  of  the  world  still 
e  ritj;ht8  of  all  others,  on 
it  our  Government  may 
ry  few  of  our  fellow  cit- 
'.  The  morality  involved 
le  upon  the  rij^hts  of  all 
it  morality  vanishes  in- 
iiins  must  be  allowed  to 
;  "must,  of  course,  be  at 
I).  51  C.  1  S.)  This  way 
iof  Mr.  Blaine's  zeal  for 
does  not  tell  us  how  it 

liferents   may  impose  in 
itroversy,  for  we  do  not 

by  Mr.  Blaine,  of  alleged 
n  in  time  of  peace,  Mr. 
lore  than  fictions  of  the 
'journalism"  of  the  Ex- 
It,  but  though  the  shells 
)m  them  after  the  shells 
ich  is  British,  and  this 
ig  the  business. 
I  concerning  pearl  fish- 
els  or  to  waters  within 
s  latest  "instance"  :  the 
d.     The  act  there  cited 
exactly  the  same  limit- 

[adopted  at  the  Vienna 
m  as  an  enemy,  not  of 
|n  having  been  by  that 
to  take  what  measures 
Act.  That  provision 
lovering  of  even  non- 
[-lelena,  is,  of  course,  a 

who, by  their  author- 
measures,  and  the  na- 

hole  civilized  world, 
ly  of  civilized  peoples 
Idift'erence  with  which 
lificant.     Already,  on 


\  1 


IT 

the  Itith  Aug.,  1H15,  our  minister  at  London  was  warned  of  one  of  the  con- 
sequences, for  us,  of  Napoleon's  captivity  oo  the  island,  by  tlie  olFicial  intima 
tion  of  an  impending  modification  of  the  still  unratified  treaty  of  ii  July,  1815. 
(Adam's  Diary  vol.;i,  p. 252)  Nothing  was  said  at  the  time  about  "hovering" 
but  neither  Mr.  Adams's  diary,  nor  our  diplomatic  correspondence,  as  far  as 
published,  has  any  reference  to  the  Act  itself.  The  inference  is,  that  either  in 
consequence  of  explanations  from  the  British  Government,  or  in  reliance 
upon  our  indisputable  immunity,  by  international  law,  from  any  mere  British 
statute,  (and  perhaps  somewhat  in  view  of  the  decisions  of  the  highest  Brit- 
ish court)  our  Government  deemed  it  superHuous  to  take  any  notice  of  the 
British  Act.  At  all  events,  it  is  a  fact  that  t'le  Act  was  never  enforced  against 
any  American  vessel,  and  the  recorded  decisions  of  the  British  courts  make 
't  certain,  that  any  attempt  to  do  so  would  have  been  defeated  by  those  courts, 
fvlready  in  May,  181!},  Sir  William  Scott  (afterwards  Lord  Stowell)  had  ruled 
that  foreigners,  whose  own  laws  tolerated  the  slave  trade,  could  not  be  inter- 
fered with  by  British  authorities  outside  of  British  jurisdiction.  (The  Uiana  I 
Dodson  p.  !)5)  Not  long  after,  March,  1810,  the  same  judge  rendered  his  cele- 
brated decision  in  the  case  of  "Le  Louis,"  in  which  he  broadened  and  empha- 
sized his  former  declaration  regarding  the  immunity  of  foreigners,  outside  of 
British  jurisdiction,  from  all  British  legislation.  (2  Dodson  p.  240.) 

Mr.  Phelps  argues  (p.  771  H.  M.)  as  if  the  precious  concession  by  Great 
Britain — whatever  it  may  have  amounted  to  —  of  "the  justice  and  expediency 
of  ff  convention,"  made  it  morally  obligatory  upon  her  to  agree  at  once  to 
any  and  every  convention  which  might  suit  us  ;  as  if  she  were  precluded  from 
withdrawing  or  even  modifying  such  concession, — which,  at  the  utmost,  was 
for  an"agreement"  still  to  be  made — tiotv  that  she  has  good  reason  for  disbe- 
lieving the  testimony  on  which  the  concession  of  "justice  and  expediency" 
was  made.  She  established,  in  accord  with  Norway,  a  close  time  for  sealing 
in  one  region,  ergo,  she  ought  to  agree  with  us  in  doing  the  same  thing  in 
an  entiiely  different  region  ! 

The  Professor  hazards  the  opinion,  that  if  the  roles  of  the  two  nations  in 
this  controversy  were  reversed,  "it  is  perfectly  certain  that  .  .  .  our  gov- 
ernment would  be  apprised,  that  if  unable  to  restrain  its  citizens  from  an 
outrage  upon  British  rights  which  it  did  not  assume  to  defend,  the  neces- 
sary measures  would  be  taken  by  the  injured  party  to  protect  itself."  (771 
H.  M.)  On  the  othT  hand,  Mr.  Phelps  tells  us  that  it  is  not  to  be  appre- 
hended that  the  forcible  prevention  by  us  of  marine  sealing"  would  lead  to 
any  collision  with  Great  Britain."  (773  H.  M.)  It  is  a  mystery  on  what 
precedent  in  British  history  these  two  suppositions  are  based,  but  it  is 
plain  that  they  cannot  both  be  correct.  If  it  "is  certain"  that  Great  Britain 
would  resort  to  force  to  impose  upon  us  such  pretensions  as  Mr.  Blaine's,  it 
is  even  more  certain  that  she  would  fight  us  to  maintain  rights  sanctioned  by 
every  rule  of  international  law.  And  Jlr.  F helps  has  forgotten  that  there  is 
a  necessary  complement  to  his  suppositious  case,  to  wit :  what  our  own  coun- 
try would  do!  Does  he  feel  equally  certain  that  an  enforcement  by  Great 
Britain  against  us  of  such  theories,  as  he  and  Mr.  Blaine  now  set  up,  would 
not  lead  to  any  collision?  Would  he  or  Mr.  Blaine  advocate  our  submission 
to  such  action  by  Great  Britain? 

If  both  Mr.  Phelps's  suppositions  are  based  solely  on  the  alleged  non-asser- 
tion by  Great  Britain  of  the  legality,  the  perfect  rightfulness  of  marine  seal- 


'tS*-% 


m 


"I  I 


I"  i 


I  :   I 


1  1 

l!    ! 


I  : 


1>   ! 


'il. 


iii^;  us  now  coiuliictcil  l)j  tlie  c'aiiadiii'is,  hoth  suppositions  are  untenable,  ns 
the  premises  have  been  disproved. 

In  bis  allusion  to  arbitration.  Mr.  Phelps  <(ives  an  entirely  wronj^  version 
of  the  faels.  "Hut  that  has  Ixeii  alri'adv  proposed  by  the  I'liited  .States, with- 
out sueeess.  The  otVer  has  been  met  by  a  counter  proposal  to  arbitrate,  not 
the  matter  in  hand,  but  an  incidental  and  collateral  question."  (77:5  II.  M.) 
F^vni  liiis  one  can  only  infer  that  nr  wrre  the  Jhst  to  propose  arl)itralion,  and 
that  '  ur  proposal  embraced  the  real  '"matter  in  hand,"  whilst  (irrat  IhifiiiH 
trie  I  to  I'luii/c  t//is. 

On  April  ;!0,  '!!(),  the  British  submitted  a  "Draft  of  a  North  American  Seal 
Fishery  Convention"  providint;  for  a  ef)mmission  of  experts,  and  in  Art.  i? 
for  arbitration  in  case  of  disaj^reement  between  the  two  nations  as  to  the  rej,'- 
ulatioiis  to  be  adopted.  (II.  E.  U,  460.  p.  54  etc.  ol  C  1  S.)  Rejected  by  us 
1>I»  May  '!tO.  (p.  70.)  Jine  27,  ".»(),  Sir  Julian  Pauncefote  wrote,  that  as  one 
of  the  conditions  for  a  request  from  the  British  L(overnment  to  British  sealers 
to  abstain  from  sealing,  it  would  be  necessary  :  "That  the  two  governments 
agree  forthwith  to  refer  to  arbitration  the  question  of  the  legality  of  the  Uni- 


Ulu 


rfer 


ith  Br 


ted  States  Ciovernment  in  seizing 

sels  engaged  in  the  Bering  Sea,  outside  of  territorial  waters,  during  the  years 

lHHi\,  1887  and  1881)."     (p.  77.) 

Rejected  by  Mr.  Blaine,  '-'July  'HO,  (p.  it;!.) 

August  '2,  'ilO,  Lord  Salisbury  wrote,  if  the  United  States  "still  dilVer  from 
them"  (the  British  government)  "as  to  the  legality  of  the  recent  captures  in 
that  sea,  they"  (the  British  government)  '■'arc  ready  to  agree  tbat  the  (/ites- 
tioHS,  with  the  issues  that  depend  upon  it,  should  be  referred  to  impartial 
arbitration."  (p.  11  II.  E.  D.  144.  ol  C  '2  S.) 

This  unconditional  olVer  was  also  rejected  by  Mr.  Blaine  on  Dec.  17,  'It'), 
and  it  is  only  in  his  note  of  this  date,  that  he  made  counter  suggestions  of 
arbitration  which  were  the  first  ones  coming  from  our  side.  The  British, 
therefore,  preceded  us  by  six  months  in  proposing  arbitration.  It  was  Mr. 
Blaine,  and  not  the  British,  who  made  "counter  proposals",  and  he  tried  to 
stnuggle  in  passages  which  appear  to  attribute  special  and  abnormal  rights  in 
the  matter  to  the  United  States.  These  passages  Lord  Salisbury  objected  to, 
in  his  turn,  but  he  accepted  all  the  other  proposals  in  his  note  of  21,  Feb'y 
'111,  (p.  4  N.  Y.  Ev'g.  Post  11  March,  '!)I.) 

If  the  British  offers  to  submit  '■'the  question  of  the  Irga  lit  v"  of  our  seizures, 
''and  the  issues  that  depend  upon  it"  do  not  meet  "the  matter  in  hand  but 
an  incidental  and  collateral  question",  words  must  have  lost  their  customary 
meaning.  Mr.  Phelps's  whole  contention  is,  that  we  have  the  legal  right  to 
prevent  marine  sealing,  and  yet  when  it  is  proposed  to  have  this  "legality" 
arbitrated  upon,  it  becomes  all  at  once  a  mere  "incidental  and  collateral  ques- 
tion." ^Vhat  other  warrant  but  "legality"  can  there  he  for  interference  with 
the  property  of  foreigners? 

As  arbitration  is  now  arranged  for,  and  as,  nevertheless,  nobody  seems  to 
be  aware  of  any  consequent  injury  to  our  "honor  and  dignity",  Mr.  Phelps's 
derogatory  remarks  on  that  method  of  settling  international  differences,  may 
be  passed  in  silence,  as  the  simple  expression  of  an  individual  opinion,  in 
glaring  contrast  to  that  of  the  vast  majority  of  our  cc  intrymen. 

Speaking  of  the  proceedings  in  re  "VV.  P.  Sayward"  now  pending  in  our 
Supreme   Court,   the  Professor   informs   us   that  "the  only  questions  that  it 


"'^fme^:^^mi'-W 


lottitioiiH  lire  untenable,  oh 

111  onfire! y  wroii'^  vcrKion 
)y  till'  I'liitt'd  StatoK.with- 
proposal  to  nrhitratc,  not 
I  question."     (77!l  II.  M.) 

0  propose  ai'hitration,  and 
id,"  whilst  (Jrrat  Britain 

^f  a  North  American  Seal 
of  experts,  and  in  Art.  H 
two  nations  as  to  tiie  rejj- 

1  C  IS.)  Rejected  hy  us 
ncetote  wrote,  that  as  one 
ernnient  to  llritisii  sealers 
riiat  tlie  two  ^^overnincntB 
of  the  ieyality  of  the  Uni- 
terferin^  with  Britisli  ves- 
il  waters,  durini'  the  years 


iA  States  "still  dilVer  from 
y  of  the  recent  captures  in 
dy  to  agree  that  the  c/ites- 
\  he   referred  to  impartial 

:r.  Blaine  on  Dec.  17,  ".10, 
de  counter  suijgestions  of 
m  our  side.  The  British, 
arbitration.  It  was  Mr. 
p-oposals",  and  he  tried  to 
al  and  abnormal  rights  in 
)rd  Salisbury  objected  to, 
|s  in  his  note  of  21,  Feb'y 

ligalitv'o^  our  seizm-es, 
the  matter  in  hand  but 
[lave  lost  their  customary 
'e  have  the  legal  right  to 
li  to  have  this  "legality" 
lental  and  collateral  ques- 
be  for  interference  with 

Ihcless,  nobody  seems  to 
|id  dignity",  Mr.  Phelps's 

lational  differences,  may 
individual  opinion,  in 

•mtrymen. 
lird"  now  pending  in  our 
Ihe  only  questions  that  it 


^iiaesss^R^f'^ 


would  seem  can  he  brought  before  the  Court  are,  whether  there  is  any  act  of 
C'ongreHs  which  reaches  the  case  .  .  .  .",  of  its  constitutionality,  of  the 
regularity  of  the  i>roceedings  under  it,  ami  of  the  correctness  of  the  form  of 
application  for  a  writ  of  pn>iiil)ition.     (77t  11.  M.j 

This  must  have  been  written  shortly  after  the  action  was  be,i,uii,  and  with- 
out knowledge  of  the  nature  of  the  pleadings.  In  the  briefs  tiled,  the  peti- 
tioners take  their  stand  entiiely  on  the  non-existence  of  American  jurisdiction 
in  the  case;  whilst  the  Attorney  General  argues, — aside  (rom  technicalities — 
that  the  tnatter  of  jurisdiction,  depending  as  it  doe^  upon  "extent  of  domin- 
ion", is  a  political  question,  which  has  alremly  been  deciiled  by  the  Political 
Department  of  our  (iovermenf,  and  that  the  Court  is  therefore  precluded 
from  considering  this  question. 

The  court  virtually  overuled  nil  these  objections,  and  issued  an  oriler  to  the 
judge  of  the  Alaska  coint,  to  show  cause  why  prohibition  shoukl  not  be 
granted.  In  his  brief,  in  reply  to  this  order,  the  Attorney  (iencral  makes 
certain  admissions  which  refute  the  last  cited  assertion  of  Mr.  Phelps.  "Rut 
the  only  (juration  at  i.ssue  in  this  case  is  the  territorial  jurisdiction  of  the 
Alaska  Court.'"'  (p.  Dii.)  "The  United  States  derived  no  power  over  the  Bering 
Sea,  except  through  the  cession  by  Russia  in  the  treaty  of  18(i7."  (p.  1»4.) 
Mr.  Phelps's  article,  /;/  extenso,  is  addeil  to  the  brief  (p.  iliU-l'JH),  but  beyond 
this  rather  left-handed  recognition  of  his  great  theory  of  o  ir  property  right 
in  the  seals,  the  Attorney  General  ilid  not  venture., 

As  the  Professor  admits,  "Nor  is  the  ctVort  to  bring  the  case  before  the 
court  a  just  subject  of  criticisin"  (p.  774  11.  M.),  it  is  a  pity  that  he  does  not 
tell  us, whether  or  not, the  persistent  endeavors  of  the  Administration  to  balk 
said  effort  is  open  to  criticism.  The  action  was  begun  the  llith  of  Jan'y,l8'.l|, 
its  entertainment  by  the  court  was  violently  opposed  by  ourothcials,  and  then, 
as_  a  last  resort,  the  hearing  was  staved  off  from  April  last  till  the  October 
term  !  Our  present  government  is  so  sure  of  its  right  in  the  premises,  that 
it  plunged  at  once  into  the  extremest  measures;  during  several  years  of  con- 
tention, its  oHlcial  representative  and  his  champions  find  not  the  least  diffi- 
culty in  demonstrating,  to  their  own  satisfaction,  the  invincibility  of  our 
Government's  position  and  action,  but  when  it  comes  to  an  investigation 
before  a  judicial  court,  where  only  genuine  documents,  bona  fide  law,  and  real 
facts  are  considered  ;  then  all  this  courage  oozes  out,  and  we  —  are  not  ready 
to  proceed,  but  have  the  trial  put  ofl'six  months ! 

It  is  very  strange;  and  all  the  more  so,  when  one  considers  the  character 
of  the  Court,  and  the  inevitable  effect  of  its  decision  in  our  Government's 
favor.  Of  all  conceivable  courts  of  law,  is  there  a  more  competent  one,  or 
one  less  likely  to  be  biased  against  our  Government.''  Would  not  its  justifi- 
cation of  the  seizures  at  once  unite  our  whole  nation  in  enthusiastic  support 
of  the  Administration  in  this  matter?  Is  there  any  other  tneans  of  securing 
that  unanimous  popular  sentiment  in  support,  the  absence  of  which  is  ad- 
mitted, and  the  necessity  of  which  is  implied,  by  Mr.  Phelps? 

What  other  explanation  can  there  be,  then,  for  this  procrastination  than 
this,  that  the  conviction  which  Mr.  Blaine  and  his  champions  tell  us  they 
have,  is  a  mere  sham,  and  that  in  reality  they  have  a  very  difl'ercnt,  and  a 
very  well  grounded  one?  That  instead  of  being  convinced  tha  they  are  ab- 
solutely right,  and  consequently  sure  of  a  triumphant  issue  from  the  action 


.  a 


at  law,  they  urc  convinced  of  the  inrvital)ility  of  n  hopclcRH  ilcfent  in  tlial 
iu-tion,  iind  conNei|iu'ntly  Niiro  of  tlic  inevitability  of  nn  iKnontinioiiH  retreat 
in  tilt'  Caif  of  llir  world? 

Tlie  i'rofi'hKor'N  "rehiikc"  to  lliosv  Ainericnns  who  iiavi-  written  a>;ainxl  liii- 
poliev  ol  tlie  Adminihtrntion  in  this  qtieNtion,  in  more  in  tlic  nature  oltlic  olil 
expedient  of  altusinj^  your  opponent's  connNel  when  you  have  nothing  else  to 
ndvntue,  than  in  tlif  nature  f)("an  aii;utnent,  let  alone  a  con^iHtetlt  arnutnent. 
His  ex|ierience  willi  tliose  wltom  lie  lias  tried  to  cnli;(liten  must  have  l)een  ex- 
ceptionally unfortunate,  if  it  makes  him  think  it  possible  that  readers,  however 
uidearned,  are  in  danjjiT  of  (irawint,'  Ruch  an  inference  as  he  imputes  to  them, 
namely:  that  because  a  writer  ehar<,'eK  that  our  (Jovernment  has  asserted 
somethini^  wronj,',  concerninj,'  o»e  suhjeet,  it  has  therefore  become  a  settled 
"proposition  in  international  law"  "that  whatever  is  asserted  by  our  own  gov- 
ernment is  necessarily  wronj,'"  (p-  77:.'  II.  M.)  Of  course,  we  all  ari,'ue  from 
our  own  experience,  even  with  regard  to  others.  If  the  Professor's  article 
under  reply,  is  a  fair  specimen  of  his  usual  style  of  nrjjuinentation,  it  is  no 
wonder  that  he  has  come  to  expect  'unlearned"  readers  to  draw  startliu); 
conclusions,  and  he  will  find,  moreover,  tiiat  the  learneil  are  just  as  apt  to  do 
so.  From  his  chief  ar;L{innent  in  this  case,  his  theory  of  a  projicrty  ri^ht  in 
wild  animals,  whatever  the  unlearned  may  think  of  it,  the  learned  are  sure 
to  infer  only,  that  the  Professor  bus  forufotten.  or  has  chosen  to  i),'nore,  one  of 
the  most  elementary  axioms  of  international  law.  Kvery  reader  must  be  sorely 
pu/zlcd  to  see  a  general  rule  s(|uarelv  admitted,  and  yet  to  hear  that  in  a 
^iven  case,  it  is  not  the  admissibility  of  an  exception,  but  the  applicability  of 
the  tjeneral  rule  which  recpiires  to  be  proved;  to  be  assured  that  the  sea  is 
free  to  all  (p.  7(18),  and  nevertheless  to  be  told  that  if  any  one  undertakes  to 
avail  himself  of  this,  for  catching  seals  there,  "It  is  for  those  who  set  up 
such  a  rifjht  to  sustain  it."  (p.  771.)  It  does  look  as  if  this  would  strike 
most  readers  as  a  sophism  pure  and  simple,  the  analogue  in  argumentation, 
to  intentional  "revoking"  at  whist. 

"If  our  government  is  demanding  what  is  wrong,  the  demand  should  at 
once  be  abandoned."  (p.  772  H.  M.)  Exactly!  We,  of  the  opposition,  have 
convinced  ourselves  that  our  government's  claitn  in  this  matter  is  utterly 
wrong,  and  that  in  making  it  the  ailministration  is  perpetrating  even  a  great- 
er outrage  upon  the  honor  of  our  nation,  than  upon  the  rights  of  the  rest  of 
the  world;  we  are  therefore  determined  to  do  all  we  can  to  bring  about  the 
abandonment  of  the  demand.  We  care  very  little  for  "diplomatic  success," 
but  a  great  deal  for  the  good  name  of  our  country  as  an  honest  and  fair  deal- 
ing one!  We  refuse  to  connive  at  a  diplomatic  success,  possible  only  at  the 
cost  of  that  good  name,  and  we  are  quite  confident  that  this  is  also  the  s:en- 
timent  of  the  nation.  It  is  not  for  the  benefit  of  foreigners  that  we  refute  the 
wretched  misstatements  and  absurd  sophisms  which  the  administration  at- 
tempts to  palm  off  for  arguments,  but  to  prevent  our  own  people  from  being 
duped  by  them. 

The  British  Government  has  already  refuted  every  one  of  Mr.  Blaine's  pleas, 
but  these  refutations  are  seen,  or  even  heard  of,  by  comparatively  few  Amer- 
icans. It  is  astonishing  to  find  an  ex-diploinatist  assert  that,  in  a  diplomatic 
controversy  over  a  question  of  pure  law  and  documentary  evidence,  any  gov- 
ernment could  possibly  gain  any  advantJige  from  suggestions  in  the  press. 


i-lltwyis '  ••:"*v.- 


a  IwipelfNH  ilcfent  in  that 
of  III)  iunoiiiiniotiH  retreat 

n  have  written  a^uinttt  the 
•re  in  the  nature  of  the  old 
1  vol!  huvi-  nothing  «'l»*e  to 
ne  a  coMsistont  arynmfnt. 
iyiUen  niUHt  have  been  ex- 
Kihle  that  readfru,  however 
nee  an  h»'  iniputcH  to  them, 
(ioveniment  Ikih  asHerted 
tlierelore  become  a  Nettled 
N  asserted  by  our  own  Kov- 
f  course,  we  all  ai  i,'ue  from 

If  the  ProfesKor'H  article 
of  ttrj^umentation,  it  i»  no 

readers  to  d:aw  startling 
arned  are  just  as  apt  to  do 
ory  of  a  projierty  right  in 
of  it,  the  learned  are  sure 
IS  chosen  to  ignore,  one  of 
very  reader  must  be  sorely 
and  yet  to  hear  that  in  a 
)n,  but  the  applicability  of 

be  assured  that  the  sea  is 

if  any  one  undertakes  to 
t  is  for  those  who  set  up 
:)k  as  if  this  would  strike 
lalogue  in  argumentation, 

,  the  demand  should  at 
of  the  opposition,  have 
n  this  matter  is  utterly 
•rpetrating  even  agreat- 
the  rights  of  the  rest  of 
ve  can  to  bring  about  the 
or  "diplomatic  success," 
an  honest  and  fair  deal- 
ess,  possible  only  at  the 
tiiat  this  is  also  the  »cn- 
gncrs  that  we  refute  the 
I  the  administration  at- 
own  people  from  being 

one  of  Mr.  Blaine's  pleas, 
Dinparatively  few  Amer- 
^ert  that,  in  a  diplomatic 
itary  evidence,  any  gov- 
.iggestions  in  the  press. 


n 


tl 


The  writers  of  these  derive  all  their  knowledge  in  the  premUeH  from  nuch 
fragnuMitary  testimony  as  the  government))  choose  to  publish,  and  Irom  text- 
books, and  vet  the>e  writers  are  "to  give  points"  to  the  very  n>en  who  have 
the  national  archives  at  their  disposal,  and  whose  life-busiiiemk  it  istoi>ecome 
and  keep  familiar  with  everything  bearing  on  the  case,  down  to  iti  tnlnutciit 
detail! 

Mr.  I'helpH  implies  that  as  "not  a  word  ban  been  uttered  or  printed  in  that 
country" — England — "uofaras  is  known,  against  the  Canadian  contention,  or 
In  support  of  that  cf  the  United  States"  (p.  772.),  this  fact  is  due  exclu- 
sively to  patriotic  reticence  on  the  part  of  British  writers!  He  has  forgotten 
that  Uritish  history  is  full  of  instances  of  the  exact  contrary  ol  his  assertion 
that  "The  suggestion  that  the  government  might  be  prejudiced  in  conducting 
the  discussion  silences  at  once  the  tongues  and  the  pens  of  both  parties," 
(p.  77;i),  and  he  has  forgotten  that  "Her  Majesty's  Opposition"  in  Parlia- 
ment and  press,  is  just  as  much  a  recognised  institution  in  ICngland  as  Her 
Majesty's  (Jovernment.  Nor  are  conspicuous  examples  of  the  sturdiest, 
most  determined  opposition  of  the  same  kind,  by  men  of  unimpeached  pat- 
riotism ami  acknowlcdgetl  capacity,  any  rarer  in  our  own  history. 

The  admission, (p.  772)  that,  very  little  has  been  published  here  in  support 
of  our  pretension,  or  indicative  of  a  sustaining  public  sentiment,  whilst  much 
"ability  and  learning"  "have  been  ilevoted  to  answering  the  arguments,  and 
dis|)roving  the  tacts  upon  which  the  government  has  relied,"  suggests  the 
probability  that  the  smallness  of  the  number  of  the  supporters  of  our  preten- 
sion, may  be  due  to  the  same  cause  as  the  "obstinacy"  of  which  the  one 
"reasonable"  juryman  complained  in  his  eleven  fellows.  An  endeavor  to 
have  a  new  precedent  in  international  law  established  may  be  very  praise- 
worthy, but  the  rules  of  that  law  having  been  once  established  by  the  general 
consent  of  tnankind  (p.  7(ilOi  they  can  be  changeil,  or  even  improved,  only  by 
the  same  general  consent.  Do  all  you  can  to  obtain  it,  but  remember  tliat 
without  it  a  single  government's  attempt  to  "establish  a  new  precedent"  is 
as  futile,  as  the  one  juryman's  attempt  to  dictate  the  verdict.  Conviction, 
not  force  is  the  remedy. 

"A  nation  tiivided  against  itself  can  never  achieve  a  diplomatic  success" 
(p.  772),  nor  can  the  Yale  law  faculty,  even  if  it  should  be  almost  unani- 
mously of  Mr.  I'help's  opinion  (of  which  there  has  been  no  evidence),  for  it 
contains  at  least  one  very  pronounced  opponent  of  our  claim.  Mr.  T.  S. 
Woolsey,  Professor  of  International  Law  at  the  Yale  Law  School,  since  1871), 
in  his  new  edition,  (the  (1th)  of  his  celebrated  father's  (T.  D.  Woolsey;  treat- 
ise on  that  science,  characterizes  on  p.  7.'?,  our  pretension  in  Bering  Sea  as 
being  "as  unwarranted  as  if  England  should  warn  fishermen  of  other  nation- 
alities off  the  Newfoundland  banks." 

It  is  hoped  that  the  necessity  of  meeting  with  documentary  disproof,  all 
Mr.  Phelp's  allegations  concerning  facts,  will  be  accepted  as  an  excuse  for  the 
length  of  this  paper.  An  examination  will  verify  all  my  data,  and  will  con- 
vince everyone,  not  excepting  Mr.  Phelps,  that,  in  this  respect,  he  has  done 
grave  injustice  to  his  subject  and  to  himself  by  his  article. 

As  regards  the  law  governing  the  case,  the  points  at  issue  between  Mr. 
Phelps  and  his  opponents  are,  by  his  own  admission,  narrowed  c'own  to  two  : 

Whether,  in  the  legal  sense,  seals  are  wild  animals  or  national  property. 


'22 


wlien  found  putside  of  territorial  juristiiction  :  and,  wlietlier  a  nation,  profes- 
sing to  accept,  as  binding  apon  itself,  the  rules  of  international  law,  (which 
admit  of  no  exceptions  in  time  of  pr:ice),can  legally  deny  the  validity  of  any 
of  these  rules,  and  can  claim  an  exception  therefrom  in  its  favor,  on  the  mere 
plea  of  a  prospective  pecuniary  loss,  on  the  alleged  inability  otherwise  to  se- 
cure whatever  such  nation  may  consider  its  due  share  of  an  industry,  in 
which  the  rule  gives  that  nation  only  an  undivided  interest,  to  be  exploited 
in  common  with  all  other  nations. 

The  question  whether  on  these  points  Mr.  Phelps  has  done  justice  either 
to  the  subject  or  to  himself,  is  one  which  may  safely  be  left  to  the  decision  of 
the  reader. 

Robert  Rayner. 

Salem,  Mass.,  June,  1891. 


I    .  ' 


-Ml 


'■'iJiWifi:. 


nation,  profes- 
al  law,  (which 

validity  of  any 
or,  on  the  mere 
)therwise  to  se- 
m  industry,  in 
;o  be  exploited 

e  justice  either 
the  decision  of 


F-RT   RaYNER. 


